IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON MONDAY, THE 13TH JULY 2009 / 22ND ASHADHA 1931 WP(C).No. 31603 of 2006(K) ---------------------------------------- OA.235/2006 of DEBT RECOVERY TRIBUNAL, ERNAKULAM .................... PETITIONER(S): ------------------------ DR. P.RAMACHANDRAN NAIR, ANUGRAHA, T.C.25/1099, THAMPANOOR, THIRUVANANTHAPURAM. BY ADV. MR.M.SREEKUMAR RESPONDENT(S): -------------------------- 1. THE SOUTH INDIAN BANK LTD., REPRESENTED BY ITS GENERAL MANAGER, HEAD OFFICE, THRISSUR. 2. THE CHIEF MANAGER (AUTHORISED OFFICER), SOUTH INDIAN BANK LTD., REGIONAL OFFICE, HOTEL SAFE INTERNATIONAL BUILDING, MALAYALA MANORAMA ROAD, THIRUVANANTHAPURAM. 3. M/S. INSTITUTE OF NUCLEAR SCIENCE & DIAGNOSTICS, REPRESENTED BY ITS MANAGING PARTNER, JAYADAS SAMUEL S., KUMARAPURAM,MEDICAL COLLEGE P.O THIRUVANANTHAPURAM. 4. JAYADAS SAMUEL S., ZION DALE, T.C.14/214, ANAYARA P.O., THIRUVANANTHAPURAM. 5. THE SENIOR MANAGER, SOUTH INDIAN BANK LTD., CHAKAI BRANCH, THIRUVANANTHAPURAM. BY MR.K.K.JOHN FOR R1 ADV. MR.K.PRABHAKARAN, SC,SOUTH INDIAN BANK FOR R2 &5 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 13/07/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.31603/2006 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE NOTICE REF. NO.TVM/RN/LEG/SN/74/05-06 DT. 30.9.2005. P2:- COPY OF THE NOTICE REF. NO.TVM/RN/LEG/SN/74/728/5-06 DT.1.3.06. P3:- COPY OF THE JUDGMENT DT. 3.4.06 IN WPC. NO.7210/06 OF THIS HONOURABLE COURT. P4:- COPY OF THE OA. NO.235/06 DT. 28.8.06 ON THE FILE OF THE DRT, ERNAKULAM. P5:- COPY OF THE POWER OF ATTORNEY DT. 8.3.06. P6:- COPY OF THE INTIMATION DT. 17.11.08 FROM THE ADVOCATE COMMISSIONER. P7:- COPY OF THE PETITION NO.5524/08 DT. 21.11.08 FILED BEFORE THE CJM COURT BY THE PETITIONER. P8:- COPY OF THE ORDER DT. 21.11.08 IN CMP. NO.5524/08 IN CMP. NO.3531/2008 OF THE CHIEF JUDICIAL MAGISTRATE, TVM. RESPONDENT'S EXHIBITS R1(1):- COPY OF THE PROCLAMATION OF SALE PUBLISHED IN THE HINDU DAILY DT. 13.6.07. E1(2):- COPY OF THE PROCLAMATION OF SALE PUBLISHED IN THE MATHRUBHOOMI DAILY DT. 13.6.07. E1(3):- COPY OF THE PAGE NUBMER 3 OF THE AUCTION REGISTER DT. 18.7.07. R1(4):- COPY OF THE NOTICE ISSUED BY ADVOCATE SRI.KOYIYACODE K. RAJEEV DT. 15.5.07. R1(5:- COPY OF THE SENT BY THE BANK TO ADVOCATE SRI.KOLIYACODE K.RAJEEV DT. 23.5.07. R1(6):- COPY OF THE POSTAL ACKNOWLEDGEMENT SIGNED ADVOCATE SRI.KOLIYACODE K.RAJEEV DT. 26.5.07. TRUE COPY P.S. TO JUDGE TSS P.R. RAMACHANDRA MENON, J. ........................................................................ W.P.(C) No. 31603 OF 2006 ......................................................................... Dated this the 13th July, 2009 J U D G M E N T The petitioner has approached this Court challenging the coercive proceedings taken by the respondent Bank invoking the provisions under the SARFAESI Act . According to the petitioner, the respondent Bank is not justified in moving the machinery under the SARFAESI Act for the reason that the Bank has already approached the DRT by filing O.A. 235 of 2006, where the matter is stated as pending. The issue stands squarely covered against the petitioner as per the decision rendered by a Division Bench of this Court in Abdul Azeez vs. Punjab National Bank [2005 (1) KLT 243] . Subsequently , the Supreme Court also affirmed the legal position as per the decision in M/s. Transcore vs. Union of India and Another [AIR 2007 SC 712]. 2. This being the position, absolutely no interference is W.P.(C) No. 31603 OF 2006 2 called for and the prayer in the above Writ Petition is not liable to be entertained. However, the learned Counsel for the petitioner pleads for sufficient time to enable the petitioner to satisfy the entire outstanding liability, which is admittedly of more than Rs.One Crore, as on date. The learned Counsel submits that steps on war footing are being pursued by the petitioner to cause the property to be sold to prospective purchasers and once the steps are finalised, the requisite amount to discharge the liability will be paid to the Bank. As a matter of fact, the petitioner was only a guarantor to the loan transaction. The Bank had already proceeded against the assets of the 'Firm' for realisation of the due amount. It was on finding that the amount procured by virtue of such steps were not adequate enough to discharge the liability, that the respondent Bank chose to proceed against the petitioner and his assets. The learned Counsel for the petitioner submits that the cause of action involved in the present case has taken a different turn after passing Ext. P3 verdict and that the challenge raised in the present Writ Petition is entirely on a different W.P.(C) No. 31603 OF 2006 3 circumstance. 3. It is to be noted that the above matter was admitted by this Court on 29.11.2006 and interim orders were passed intercepting with the coercive steps at different points of time. By virtue of the interim orders as above, the petitioner is still in occupation of the property and the learned Counsel for the petitioner submits that the entire liability towards the respondent Bank will be cleared within a short time. 4. Considering the sequence of events, the petitioner is directed to clear the entire liability to the respondent Bank within a period of three months. On clearing the liability as above, the respondent Bank shall release the title deeds of the petitioner. It is also made clear that, this is without prejudice to the right of the petitioner to approach the Bank for availing some or other concessions, if any, with regard to the possible reduction in the total liability to be discharged or on the question of interest, cost or on such other heads. It is further made clear that once the entire liability is cleared as above, the petitioner will be at liberty to proceed against the principal W.P.(C) No. 31603 OF 2006 4 debtor for realisation of the amount satisfied by the petitioner in discharge of the loan transaction availed by the principal debtor/third respondent from the Bank. The Writ Petition is disposed of as above. P.R. RAMACHANDRA MENON, JUDGE. lk