IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM THURSDAY, THE 4TH NOVEMBER 2010 / 13TH KARTHIKA 1932 WP(C).No. 26890 of 2010(I) --------------------------------------- PETITIONER(S): ------------------------ BHUVANESWARI THANKACHY, AGED 50 YEARS, D/O.SARASWATHI THANKACHY, SOORYA, KADAKULAM, PLAMOOTTUKADA P.O. BY ADVS. SRI.R.T.PRADEEP, SRI.V.VIJULAL. RESPONDENT(S): --------------------------- THE AUTHORISED OFFICER, THE THIRUVANANTHAPURAM DISTRICT CO-OPERATIVE BANK LTD., HEAD OFFICE, THIRUVANANTHAPURAM - 695 001. BY ADV. SRI.K.G.RADHAKRISHNAN, SC THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 04/11/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss C.K.ABDUL REHIM, J. ------------------------------------------- W.P.(C).No.26890 of 2010 ------------------------------------------- Dated this the 4th day of November, 2010 J U D G M E N T ---------------------- Proceedings under the provisions of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI Act) is under challenge in this writ petition. Aggrieved by coercive steps initiated on issuing Ext.P1 notice intimating steps as contemplated under Section 13(4) of the Act, the petitioner is approaching this court. It is evident from Ext.P2 that, the respondent had taken over possession of the property, symbolically, and the property was proclaimed for sale as per Ext.P3 and P4. 2. Even though the petitioner had not availed the remedy available under the statute, against the steps initiated under Section 13(4), as a gesture of indulgence, this court had directed deferment of the sale subject to condition of the petitioner remitting a sum of Rs.1 lakh on or before 31.8.2010 and a further sum of Rs.2 lakhs within 3 weeks thereafter. Subsequently, the petitioner filed I.A.13070/2010 seeking extension of time stipulated for compliance of the interim order, on the ground that she had already remitted a sum of Rs.2 lakhs W.P.(C).26890/10-I -2- out of the total amount stipulated in the interim order. On 28.9.2010 this court was pleased to extend the time limit till 8.10.2010. Thereafter the case was posted on different occasions. But the petitioner has not remitted the balance amount. 3. When the matter was posted for consideration on today, learned counsel raised a legal issue that the respondent was not having jurisdiction to initiate proceedings under the SARFAESI Act. According to the petitioner, the loan was availed from the District Co-operative Bank, which is not a creditor coming within the purview of the SARFAESI Act. Learned counsel is canvassing the above position based on a ruling of the Hon'ble Supreme Court reported in Greater Bombay Coop. Bank Ltd. Vs. United Yarn Tex (P) Ltd. And others ((2007) 6 SCC 236). On the other hand, learned counsel appearing for the respondent submitted that the issue now stands settled by a decision of a Division Bench of this Hon'ble Court. 4. However, I am not inclined to entertain the challenge now raised based on the question of jurisdiction, in view of the fact that the petitioner has got an effective remedy to adjudicate such questions before the appropriate forum as provided under the statute. Having sought for indulgence of this court on equitable considerations for getting the sale deferred, the W.P.(C).26890/10-I -3- petitioner could not be permitted to raise some legal contentions on a subsequent stage, even without complying with the stipulations insisted on by this court. Even though learned counsel for the petitioner submitted that the question raised is a legal issue, I am not at all inclined to exercise my discretion to entertain such dispute in this writ petition in view of availability of the effective alternate remedy. 5. Under the above circumstances the writ petition is dismissed without prejudice to rights if any available to the petitioner to agitate the matter before appropriate forum as provided under the statute. C.K.ABDUL REHIM, JUDGE. okb