IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN WEDNESDAY, THE 18TH FEBRUARY 2009 / 29TH MAGHA 1930 WP(C).No. 5430 of 2009(W) --------------------------------------- PETITIONER(S): ------------------------- K.M.MUHAMMED MUSTHAFA, AGED 57 YEARS, S/O.MUHAMMED, KALEEKKAL HOUSE, MUTHOOR PO., THIRUVALLA, PATHANAMTHITTA. BY ADV. MR.R.SANTHOSH BABU RESPONDENT(S): --------------------------- 1. STATE OF KERALA, REP. BY SECRETARY, DEPARTMENT OF CORPORATION SECRETARIAT, THIRUVANANTHAPURAM. 2. JOINT REGISTRAR, DEPARTMENT OF CO- OPERATION,PATHANAMTHITTA. 3. PATHANAMTHITTA DISTRICT CO.OPERATIVE BANK LTD., REP. BY ITS GENERAL MANAGER, HEAD OFFICE, P.B.NO. 45, PATHANAMTHITTA. 4. THE AUTHORISED OFFICER, THE PATHANAMTHITTA DISTRICT CO.OPERATIVE BANK LTD., PATHANAMTHITTA. 5. THE BRANCH MANAGER, PATHANAMTHITTA DISTRICT CO.OPERATIVE BANK LTD., THIRUVALLA BRANCH, THIRUVALLA. R1 & R2 BY GOVERNMENT PLEADER MR. K.C.SANTHOSHKUMAR BY ADV. MR. T.P.PRADEEP, SC, PATHANAMTHITTA DIST.CO-OPERATIVE BANK. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 18/02/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss THOTTATHIL B. RADHAKRISHNAN, J. = = = = = = = = = = = = = = = = = = = = = = = = W.P.(C).No.5430 of 2009-W = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 18th day of February, 2009. JUDGMENT 1.The petitioner, who availed a loan in 1993-94, is now facing a notice under Section 13(2) of the SARFAESI Act for recovery of around Rs.45 lakhs. Going by the law laid by the Apex Court in Mardia Chemicals, the petitioner does not have any legal right to file an application under Section 17 of the SARFAESI Act against that notice or against any reply that may be given by the bank to the petitioner in answer to the notice under Section 13(2). Equally, therefore, he would not normally have any remedy from this Court except in exceptional circumstances. 2.The only plea of the petitioner is that he requested the bank to permit him to sell a portion of the property and had also made a WP(C)5430/2009 -: 2 :- request to extend one time settlement facility or other scheme to slash the entire outstandings since the loan availed initially was for an amount of Rs.2.5 lakhs. While the bank could consider any ameliorative measure that could be extended to the petitioner, he need not wait for the bank to grant permission for the sale of a part of the property because, it will always be open to him to find an appropriate purchaser and go to the bank to pay off the entire amounts as demanded by the bank for final settlement and close the transaction and get the release of the documents of the property so that the sale itself can be expedited. The mere submitting of an application for permission to sell a portion of the property need not necessarily drag on the enforcement of a matter relatable to a loan of the year 1993-94. Subject to what is aforesaid and preserving the right of the petitioner to remedies under Section 17 of the SARFAESI Act as and when any measure is WP(C)5430/2009 -: 3 :- taken under Section 13(4) of the SARFAESI Act, this writ petition is closed. THOTTATHIL B. RADHAKRISHNAN, JUDGE. Sha/200209