IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM TUESDAY, THE 12TH OCTOBER 2010 / 20TH ASWINA 1932 WP(C).No. 26270 of 2010(G) ----------------------------------------- PETITIONER(S): ------------------------ 1. M/S.SUTHARYA ELECTRONIC INDUSTRIES, COURT ROAD, NEYYATTINKARA,THIRUVANANTHAPURAM DISTRICT,REP.BY ITS PROPRIETOR FRANCIS XAVIER. 2. FRANCIS XAVIER,AGED 54 YEARS, S/O.JOHN SAMARDHAKOM,ANIZHAM,NANNAMKUZHI, PAYATTIVULA PO,THIRUVANANTHAPURAM. BY ADV. SRI.D.ROBINSON RESPONDENT(S): --------------------------- 1. AUTHORISED OFFICER, INDIAN OVERSEAS BANK ARALUMOODU BRANCH,REGIONAL OFFICE,M.G.ROAD, THIRUVANANTHAPURAM-695 035. 2. INDIAN OVERSEAS BANK,ARALUMOODU BRANCH, ARALUMOODU ,THIRUVANANTHAPURAM DISTRICT,REP.BY ITS BRANCH MANAGER 695 121. 3. KAMALUDEEN,50 YEARS,S/O.K.KUTTY,KUTTY COTTAGE VETTUVILAKOM,VAZHIMUKKU,BALARAMAPURAM, THIRUVANANTHAPURAM DISTRICT,PIN 695 501. 4. KOTTUKAL GRAMA PANCHAYAT, KOTTUKAL (VIA),BALARAMAPURAM, THIRUVANANTHAPURAM DISTRICT,PIN 695 501, REP.BY ITS SECRETARY. R1 & R2 BY ADV. SRI.P.B.SURESH KUMAR, R3 BY ADV. SRI.G.SUDHEER R4 BY ADVS.SRI.R.T.PRADEEP, SRI.V.VIJULAL. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 12/10/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss C.K.ABDUL REHIM, J. ------------------------------------------- W.P.(C).No.26270 of 2010 ------------------------------------------- Dated this the 12th day of October, 2010 J U D G M E N T ---------------------- The petitioner is challenging sale of immovable property effected under the provisions of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI Act), pursuant to Ext.P7 notice. Consequent to default committed in repayment of loan availed by the petitioner from respondents 1 and 2, steps under the SARFAESI Act was initiated against the immovable property, which is the secured asset. As per Ext.P7 notice the sale was proclaimed on 5.2.2010. The 3rd respondent had bid in action the property for a sum of Rs.16.50 lakhs. The sale was confirmed in favour of him and 'sale certificate' was issued on 11.2.2010. Through Ext.P9 letter the respondent Bank had effected payment of the excess amount of Rs.2,26,246/- to the petitioner, through Demand Draft. 2. According to the petitioner, he has not encashed the Demand Draft. It is contended that the sale in question was vitiated by various irregularities. It is also contended W.P.(C).26270/10-G -2- that pursuant to objections filed against the demand notice issued under Section 13(2), the respondent Bank has not taken any decision as obliged under Section 13(3). Further contention is that Ext.P7 sale notice was published not with a gap of 30 days as required under the relevant provisions. 3. All the above contentions were refuted by learned counsel appearing for the respondent Bank, as well as the counsel appearing for the 3rd respondent. It is contended that, inspite of the sale being taken place on 5.2.2010, the petitioner has not raised any objections against the confirmation of sale or against the issuance of sale certificate. It is pointed out by learned counsel appearing for respondent Bank that, if the petitioner is having any grievance against the sale on the ground that the same was vitiated by any material irregularity, the statute provides effective remedy to approach the Debts Recovery Tribunal, invoking its powers under Section 17(1). He points out to a recent decision in Authorized Officer, Indian Overseas Bank and Another Vs. M/s. Ashok Saw Mill (2009 (8) SCC 366) in which it is held that the disputes pertaining to period after the sale can also be agitated in a proceedings under Section 17. Learned counsel for the 3rd respondent specifically points out that the Bank had given reply to the objections submitted against the demand notice and that Ext.P7 notice of W.P.(C).26270/10-G -3- sale was published as early as on 24.12.2008. 4. Considering the rival contentions, I am of the opinion that the question as to whether the sale was vitiated by any material irregularity is a matter which need be decided on the basis of evidence on factual aspects. Since the petitioner has got effective alternate remedy provided under the statute, I am not inclined to enter upon any adjudication on those disputed facts. 5. Under the above circumstances the writ petition fails and the same is dismissed without prejudice to rights if any available to the petitioner to challenge the sale before appropriate forum, as permissible under law. C.K.ABDUL REHIM, JUDGE. okb