IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN WEDNESDAY, THE 24TH SEPTEMBER 2008 / 2ND ASWINA 1930 WP(C).No. 28429 of 2008(H) ------------------------------------- CMP.4498/2008 of C.J.M.,KOLLAM PETITIONER: ------------------------- ABDUL NAVAS, S/O. MUHAMAD HANEEFA ELAMBYIL BENZ AUTOMOBILES, KADAKKAL, ELAMBAYIL, ELAMPAZHANOOR, CHADAYAMANGALAM, KOLLAM DISTRICT. BY ADV. SRI.ALEXANDER GEORGE RESPONDENTS: ------------------------ 1. THE DHANALAKSHMI BANK LTD. REPRESENTED BY ITS MANAGER CHADAYAMANGALAM BRANCH, KOLLAM DISTRICT. 2. AUTHORIZED OFFICER, (CHEIF MANAGER) DHANALAKSHMI BANK LTD. FORT BRANCH, TRIVANDRUM. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 24/09/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOTTATHIL B. RADHAKRISHNAN, J. ------------------------------------------------------------------------ W.P.(C) NO.28429 OF 2008 (H) ------------------------------------------------------------------------ Dated this the 24th day of September, 2008 J U D G M E N T “C.R.” Heard the learned counsel for the petitioner and Adv.Sri.C.K.Karunakaran who appears for the respondents. 2. The petitioner availed a facility from the first respondent bank. On default, the bank initiated proceedings under the Revenue Recovery Act. The petitioner carried that matter before the Government and, quite surprisingly, was successful in obtaining an order of stay of the revenue recovery proceedings on condition of payment of 10 percent of the total outstandings and for remitting the balance in 50 equal instalments. The Government can be gracious, compassionate and benevolent. But such exercise could be done, only if they have the power to do so. When requisition is made by an authority which, owing to the relevant notification under Revenue Recovery Act, is entitled to invoke that Act for recovery, it is not within the domain of the Government to interfere and pass orders of stay of such recovery W.P.(C) No.28429/2008 - 2 - proceedings. The Government can grant instalment facility or stay the recovery proceedings, only in relation to cases where the recovery proceedings are for money due to the Government and not otherwise, unless such power is expressly confirmed. Not only that, even a glance to the Schedule VII of the Constitution of India, would show that banking, negotiable instruments, currency etc. are the matters that fall in the union list and hence beyond the Legislative and executive competence of the State. Therefore, there is no shred of authority for the State Government to interfere with the recovery proceedings in relation to bank loans initiated under the Revenue Recovery Act. 3. With the pittance that was remitted, utilising the stay order issued by the Government, the bank issued notice under Section 13(2) of the SARFAESI Act. The petitioner challenges that notice and proceedings. The transaction is not denied; the default is not disputed. The order of the stay issued by the State Government is not an answer to recovery proceedings by the bank. The impugned proceedings under the SARFAESI Act is, therefore, with jurisdiction. There is no legal infirmity or jurisdictional error in it. W.P.(C) No.28429/2008 - 3 - 4. Faced with the aforesaid situation, the learned counsel for the petitioner submits that his client gives up all other contentions and right, if any, to move before any statutory authority including DRT or any civil court, challenging the SARFAESI Act proceedings and that the petitioner may be given an opportunity to wipe off the remaining outstandings in instalments. Considering the aforesaid submission and repelling all other contentions, this writ petition is ordered directing that if the petitioner remits the remaining outstandings in four equal instalments, payable on or before the 15th of every month, commencing from October, 2008, the impugned recovery proceedings will be withheld and dropped on satisfaction. If there is default in remitting any of the afore-directed instalments, the benefit of this judgment shall stand recalled automatically and the bank will be at liberty to forthwith proceed with the impugned action, without any further notice. Sd/- THOTTATHIL B. RADHAKRISHNAN, JUDGE skr/25/9 // True copy // P.A. to Judge.