IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM WEDNESDAY, THE 10TH NOVEMBER 2010 / 19TH KARTHIKA 1932 WP(C).No. 33917 of 2010(L) -------------------------- PETITIONER(S): --------------- G.JAYACHANDRAN, S/O. GOPALAN, "ROHINI" HOUSE, EDATHITTA, KODUMON, ADOOR, PATHANAMTHITTA. BY ADV. SRI.SEBASTIAN PHILIP SRI.R.ANIL RESPONDENT(S): --------------- 1. THE H.D.F.C. BANK (LORD KRISHNA BANK LTD.), H.D.F.C. BANK LTD.), H.D.F.C. BANK HOME, SENAPATHI BAPAT MARG, LOWER PAREL, MUMBAI-400013, REPRESENTED BY ITS MANAGING DIRECTOR. 2. THE AUTHORIZED OFFICER, HDFC BANK LTD., (LORD KRISHNA BANK LTD.), REMEDIAL MANAGEMENT UNIT, FIRST FLOOR, CHOICE TOWERS. 3. THE SUB REGISTRAR, SUB REGISTRAR'S OFFICE, ADOOR. 4. THE DEPUTY SUPERINTENDENT OF POLICE, ADOOR. 5. M.J.EMIL, S/O. JINARAJAN, MANNADY P.O., ADOOR, PATHANAMTHITTA. ADV. SRI.T.RAJESH, SC, HDFC BANK LTD. FOR R1 & R2 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 10/11/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: C.K. ABDUL REHIM, J ------------------------------- WP(C) NO. 33917 OF 2010 ------------------------------------- Dated this the 10th day of November, 2010 JUDGMENT Challenge in this Writ Petition is against Ext.P8. The petitioner is admittedly a guarantor with respect to a loan availed by the 5th respondent from respondents 1 and 2. Consequent to default committed in repayment of the amounts due under the loan account steps under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI Act) was initiated. Ext.P7 is the notice issued by the second respondent under Section 13 (2) of the Act. Petitioner submitted a detailed reply/objection to the said notice, as per Ext.P8. 2. On a perusal of Ext.P8, it is evident that the proceedings was objected on the premise that there was inordinate delay in invoking the proceedings and that there was no charge created on the property since the Bank had violated terms of the agreement. It is further 2 WP(C) No. 33917/2010 contended that the charge intended to be created by the guarantor will not operate since the respondent Bank had not credited the Demand Draft issued in favour of the Assistant Excise Commissioner, Pathanamthitta which was returned by that authority. It was pointed out that with respect to the loan transaction Bank authorities are facing criminal investigation on the basis of the cheating alleged in a criminal complaint. Therefore it is contended that it is highly premature to enforce recovery steps under the SARFAESI Act. At any rate, it was contended that initiation of the SARFAESI proceedings during pendency of the matter before the Debt Recovery Tribunal in O.A. 314/2001 is not sustainable. In the objection it is specifically stated that the petitioner wish to be heard in the matter. 3. Considering the objections, Ext.P9 reply was issued by the authorized officer. The contentions narrated in Ext.P8 was considered and specific reply was given to each such contention. With respect to the personal hearing requested it 3 WP(C) No. 33917/2010 is mentioned as follows. “ Your claim for personal hearing is without any basis as the second amongst you is free to approach the authorised officer at any point of time if so advised”. 4. Contention of the petitioner is that the dispute pertaining to the loan transaction is pending adjudication under various proceedings since the last ten years and initiation of the proceedings under SARFAESI Act was not legal and justified. Further contentions raised is that the property in question which is now sought to be proceeded against is an agricultural land which is exempted from the purview of Section 31 (i) of the Act. It is also contended that the denial of opportunity of personal hearing, inspite of specific request, will vitiate Ext.P9 and the second respondent had failed to exercise jurisdiction vested on him in a legal and proper manner. 5. It is noticed that the provisions contained in the SARFAESI Act insist upon the authorized officer to consider objections if any submitted against the demand. Under 4 WP(C) No. 33917/2010 Section 13 (3A) the authorized officer is at an obligation to give a reply on consideration of such objections. It is pertinent to note that if any further proceedings is pursued on the basis of rejection of the objections, any person aggrieved can invoke remedies as provided under Section 17 (1), by approaching the Debt Recovery Tribunal. If there is any material illegality or irregularity as far as the decision taken in Ext.P9, the same can be agitated before the Tribunal while invoking powers under Section 17 (1). 6. It is not proper for this Court exercising powers under Article 226 to adjudicate upon as to whether the decision taken on the basis of the contentions raised in the objections if valid or not. Since an effective alternate remedy is provided, I am not inclined to exercise the discretionary jurisdiction vested upon this Court to set aside Ext.P9. 7. Even on the aspect of personal hearing, I find that an opportunity of personal hearing is not mandatory considering the provisions contained under Section 13 (3A) 5 WP(C) No. 33917/2010 further as quoted above, the authorized officer had made it clear that the petitioner is at liberty to approach the authorized officer with a view to appraise any of his contention. Learned counsel for the petitioner contended that even in a matter where statute does not prescribe hearing the principles of 'Audi alteram Partem' need be followed. However, the question as to whether Ext.P9 is unsustainable due to lack of personal hearing, is left open for agitation. 8. As stated above, considering the alternative remedy provided, I am of the view that this Writ Petition does not deserve merit and the same is liable to be dismissed. 9. Therefore the Writ Petition is dismissed without prejudice to rights of the petitioner to invoke statutory remedy as provided under Section 17 (1). It is made clear that all the contentions raised in this Writ Petition is left open for agitation. C.K. ABDUL REHIM JUDGE dnc