IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM FRIDAY, THE 4TH DECEMBER 2009 / 13TH AGRAHAYANA 1931 WP(C).No. 34890 of 2009(E) -------------------------------------- PETITIONER(S): ---------------------- 1. N.K.SALIM, AGED 40 YEARS, S/O. KUNJU BAVA, NAICANMAVUDY, NELLIKUZHI P.O., KOTHAMANGALAM, ERNAKULAM DISTRICT-686 691. 2. N.K.MAKKAR, AGED 36 YEARS, S/O. KUNJU BAVA, NAICANMAVUDY, NELLIKUZHI P.O., KOTHAMANGALAM, ERNAKULAM DISTRICT-686 691. BY ADV. SRI.A.P.SUBHASH RESPONDENT(S): ------------------------- CANARA BANK, 112, J.C.ROAD, BANGALORE-560 002, REPRESENTED BY AUTHORIZED OFFICER, SENIOR MANAGER, ASSET RECOVERY MANAGEMENT BRANCH, ERNAKULAM, HAVING BRANCH OFFICE AT RUKHIYA BAGH BUILDING, RAVIPURAM, ERNAKULAM. STANDING COUSEL MR.P. GOPINATH MENON THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 04/12/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sou. C.K.ABDUL REHIM, J. ------------------------------ W.P.(C).No.34890 OF 2009 ------------------------------ Dated this the 4th day of December, 2009 J U D G M E N T ---------------------- 1. In view of the fact that the main contentions raised in this writ petition against proceedings under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI Act) depends on various factual aspects which are in dispute, I am of the opinion that an adjudication of such contentions is not possible in this writ petition. This is especially because an effective remedy by way of appeal is provided under the statute before an authority which can adjudicate on disputed factual aspects. 2. Having confronted with the above situation, learned counsel appearing for the petitioners conceded that they will resort to the appellate remedy. But an apprehension is expressed that the Tribunal concerned may not be entertaining the appeal for non-production of copy of notice pertaining to action initiated under Section 13(4) of the Act. According to the petitioners no notice under Section 13(4) was served on them. However, it is noticed that in view of decisions of the Hon'ble Supreme Court an action for sale of the secured assets is also an W.P.(C).34890/09-E 2 action challengeable in appeal under Section 17(1). Therefore I am of the opinion that the apprehension is baseless because the petitioners can challenge the action for sale initiated pursuant to Ext.P2 and P3 notices. 3. Further apprehension expressed by the petitioners is that the respondents may proceed with confirmation of sale, if any takes place pursuant to Ext.P2 and P3, even without affording a breathing time to the petitioners to approach the appellate Tribunal. Having considered the fact that the petitioners were served with Ext.P2 and P3 only during last week and also having considered the fact that the petitioners had approached this court in this writ petition, I am inclined to direct confirmation of sale if any to be kept in abeyance for a short period in order to facilitate the petitioners to approach the appellate authority. 4. Under the above circumstances the writ petition is disposed of permitting the petitioners to file appeal against Ext.P2 and P3 before the Debt Recovery Tribunal, under Section 17(1). If any such appeal is filed within a period of two weeks from today, the same shall be entertained by the Tribunal and disposed of on merits. Needless to say that the petitioners can approach the Tribunal seeking appropriate interim reliefs. In W.P.(C).34890/09-E 3 order to facilitate the petitioner to approach the Tribunal, confirmation of sale if any takes place pursuant to Ext.P2 and P3 shall be kept in abeyance for a period of two weeks from today. The writ petition is disposed of with the above observations. C.K.ABDUL REHIM, JUDGE. okb