IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM MONDAY, THE 8TH NOVEMBER 2010 / 17TH KARTHIKA 1932 WP(C).No. 27955 of 2010(T) --------------------------------------- PETITIONER(S): ------------------------ SUSEELA, W/O.ANILKUMAR, ANAKHA JOB CLUB, KADAVUMTHURUTHU, MANGARAM, KONNI P.O., PATHANAMTHITTA. BY ADVS. SRI.B.S.SWATHY KUMAR SMT.P.A.ANITHA SMT.S.MEERA RESPONDENT(S): -------------------------- 1. UCO BANK, PATHANAMTHITTA BRANCH, FAISAL TOWERS, OPPOSITE COLLECTORATE, PATHANAMTHITTA, REPRESENTED BY ITS MANAGER, PIN-689 645. 2. THE AUTHORISED OFFICER/CHIEF MANAGER, UCO BANK, KOLLAM BRANCH. R1 & R2 BY ADVS. SRI.GEORGE KARITHANAM VARGHESE SRI.C.I.ABRAHAM SRI.JOSE KURIAKOSE (VILANGATTIL) THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 08/11/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sts C. K. ABDUL REHIM, J. =~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~= W.P.(C) No. 27955 of 2010 =~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~= Dated this the 8th day of November, 2010 JUDGMENT Challenge in this writ petition is against proceedings initiated under the the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI Act). 2. The petitioner was sanctioned with credit facilities to the tune of Rs.8 lakhs, by the respondent Bank. It is stated that an amount of Rs.4 lakhs was allowed as a term loan and another sum of Rs.4 lakhs as a cash credit facility. The amount was availed for the purpose starting a Ladies Hostel by name “Anakha Job Club”. The building in question was owned by the husband of the petitioner who had availed another housing loan from the respondent Bank, to the tune of Rs.7 lakhs. It is stated by utilizing the loans, one floor was constructed and the Ladies Hostel in question was started. Admittedly, there were defaults in repayment of the loans availed by the petitioner. Consequently, the W.P.(C) No. 27955/2010 2 respondents had initiated proceedings under the SARFAESI Act and the immovable property, which was mortgaged for securing the loan, was proceeded against. Ext.P4 is the notice issued intimating steps as contemplated under section 13(4) of the SARFAESI Act. An amount of Rs.7,83,408/- along with interest due thereon from 1-4-2010 onwards, was demanded under Ext.P4. 3. It is noticed that the petitioner has not availed the statutory remedy provided against the impugned proceedings. According to the petitioner, even though various approaches were made before the respondents offering to pay the arrears due and seeking permission for regularization of the account, coercive steps were proceeded without considering such requests. Hence, the writ petition is filed. 4. Learned standing counsel appearing for the respondents made submissions based on instructions to the effect that, the term loan as well as cash credit facility was availed by the petitioner along with three other partners W.P.(C) No. 27955/2010 3 under a particular scheme sponsored by the Central Government namely, “National Employment Services (Kerala) Multi Purpose Service/Job Club – Self Employment Scheme for Registered Unemployed Youth”. It is stated that the cash credit facility availed to the tune of Rs.4 lakhs remained inoperative since March,2009 onwards. It is also mentioned that in the term loan account, only a repayment of Rs.10,000/-was effected by the petitioner and her partners. Under such circumstances, renewal/regularization of the accounts was not at all possible, is the contention. 5. Learned counsel for the petitioner stoutly refuted the above contentions. It is specifically submitted that credit of subsidy allowed by the Central Government to the tune of Rs.1,38,000/- has already been paid to the bank and the said amount was credited to the term loan account. Therefore, contention of the petitioner is that, only a meagre amount is now outstanding arrears, as far as the term loan account is concerned. It is further submitted that the petitioner and her partners are ready and willing to W.P.(C) No. 27955/2010 4 renew the cash credit facility. Hence, the refusal on the part of the Bank to permit continuation of operations in the loan account is assailed. 6. Considering the rival submissions and disputes with respect to factual aspects prevailing, I am of the view that, it is not a matter which can be adjudicated in a proceedings under Article 226. It is noticed that, under the provisions of the SARFAESI Act, the petitioner has got an effective remedy to approach the Debts Recovery Tribunal against the steps initiated under section 13(4) of the Act. Being a fact finding authority, the Tribunal can adjudicate upon the disputed question regarding correctness of the amount due and as to whether there was any violation of the terms and conditions of the loan agreement. 7. Having confronted with the above situation, learned counsel for the petitioner seeks permission to withdraw the writ petition without prejudice to rights of the petitioner to approach the Tribunal invoking the provisions under section 17(1) of the SARFAESI Act. W.P.(C) No. 27955/2010 5 8. Under such circumstances, the writ petition is dismissed as withdrawn, without prejudice to the rights if any available to the petitioner to approach the Debts Recovery Tribunal, invoking remedy provided under the SARFAESI Act. 8. It is noticed that the petitioner had remitted a sum of Rs.50,000/- pursuant to an interim order issued by this Court on 9-9-2010. Needless to say that such payment will be duly given credit by the respondents. C. K. ABDUL REHIM, JUDGE. mn.