IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON TUESDAY, THE 26TH MAY 2009 / 5TH JYAISHTA 1931 WP(C).No. 13263 of 2009(C) ------------------------------------- PETITIONER: ------------------ PONNAMMA, AGED 50 YEARS, W/O. RAJAPPAN, PUTHENPARAMBIL, PULINKUNNU, ALAPPUZHA, NOW RESIDING AT BHUVANESWARI GARDENS, KIDANGAPARAMBU, ALAPPUZHA. BY ADV. SRI.N.K.MOHANLAL RESPONDENTS: ------------------------ 1. STATE BANK OF INDIA, REPRESENTED BY ITS CHIEF MANAGER, REGIONAL BUSINESS OFICE, ALAPPUZHA. 2. THE BRANCH MANAGER, STATE BANK OF INDIA, AGRICULTURAL DEVELOPMENT BRANCH, PB NO.4001, CULLAN ROAD, ALAPPUZHA. 3. P.R. RAJESH, S/O.RAJAPPAN, AGED 3 YEARS, BHUVANESWARI GARDENS, KIDANGANPARAMBU, ALAPPUZHA. 4. SMT. ARCHANA RAJESH, AGED 33 YEARS, W/O.RAJESH, BHUVANESWARI GARDENS, KIDANGANPARAMBU, ALAPPUZHA. SRI. K.K. CHANDRAN PILLAI,SC FOR SBI THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 26/05/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 13263/2009 APPENDIX PETITONER'S EXHIBITS: EXHIBIT P1: TRUE COPY OF SECTION 13(4) NOTICE. EXHIBIT P2: TRUE COPY OF SALE NOTICE DATED 8/10/2008 IN MALAYALA MANORAMA DAILY. RESPONDENTS' EXHIBITS: EXHIBIT R1(a): TRUE COPY OF JUDGMENT DATED 9/12/2008 IN WPC NO.32048/2008 AND 32428/2008 OF THIS HON'BLE COURT. EXHIBIT R1(b): TRUE COPY OF ORDER DATED 1/04/2009 OF THE DEBTS RECOVERY APPELLATE TRIBUNAL, CHENNAI. EXHIBIT R1(c): TRUE COPY OF ORDER DATED 5/05/2009 OF THE DEBTS RECOVERY APPELLATE TRIBUNAL, CHENNAI. /TRUE COPY/ P.A. TO JUDGE RAV P.R.RAMACHANDRA MENON, J ----------------------------------------------- W.P.(CIVIL)NO.13263 OF 2009 ----------------------------------------------- Dated this the 26th day of May 2009 JUDGMENT EXT.P1 and P2 notices issued by the respondent Bank on 30.05.2007 and 6.10.2008 are sought to be challenged in the present Writ Petition stating that the cause of action has arisen only on 4.5.09. The main challenge is that the petitioner (borrower of the loan from the Bank), and her guarantors (the 3 rd and 4 th respondents) who are her son and daughter-in-law have not been given reasonable opportunity to clear out the liability before proceeding with the coercive steps. 2. The case of the petitioner is that the loan was secured by creating equitable mortgage over the property belonging to the 3 rd and 4 th respondents (son and daughter-in-law) by depositing the title deeds. It is said, that there is no rhyme or reason in proceeding W.P.(CIVIL)NO.13263 OF 2009 2 against the entire properties altogether, instead of taking steps only against the requisite extent which is adequate to meet the liability involved. The main points of challenge are that Ext.P1 sale notice suffers from various irregularities and discrepancies; that the steps taken to sell the whole properties given as security are beyond the scope of the statute; that no proper 'upset price' has been fixed in respect of the property by notification; that the properties have not been valued by an approved valuer as prescribed under Rule 8(5) of the Security Interest(Enforcement)Rules, 2002 and further that the respondent Bank can proceed against the residential property having a lesser extent of 8.400 cents of land only after finalizing the steps in respect of the other extents of land and that the sale of the former extent itself will fetch much more than the amount which is required to satisfy the whole liability. W.P.(CIVIL)NO.13263 OF 2009 3 3. The learned counsel appearing for the Bank, with reference to the specific averments in the counter affidavit, submits that the writ petition itself is not maintainable; particularly since the petitioner as well as respondents 3 and 4, along with the husband of the petitioner had approached this Court, DRT, Ernakulam, CDRF and also the Debt Recovery Appellate Tribunal, Chennai at different points of time earlier, while the petitioner has not chosen to reveal any such facts. The learned counsel for the respondent Bank further submits that the property covered by Exts.P1 and P2 are not owned by the petitioner and hence the 'locus standi' of the petitioner to challenge the proceedings taken against the said properties is also disputed. Further Exts.P1 and P2 having been issued on 30.05.07 and 6.10.08 respectively, the aggrieved party had to approach the DRT within 45 days as per the statute. It is pointed out W.P.(CIVIL)NO.13263 OF 2009 4 that, since there is no power to condone the delay, the matter has become final and no more open to challenge. 4. The respondent Bank's case is that the petitioner, the 3 rd and 4 th respondents (son as well as daughter-in- law) and husband, along with some others had procured huge loans involving more than 30 borrowings, amounting to a total present value of more than 4 crores. It is also submitted that, making use of the “prior documents” in respect of the properties involved herein, the petitioner along with 3 rd and 4 th respondents, her husband and 5 others had earlier approached the Agricultural Development Bank, Alleppey and had obtained a loan to an extent of 97.5 lakhs. It was thereafter that the very same properties were offered as security before the SBT, Kayamkulam. 5. The present loan of Rs.15 lakhs was obtained by W.P.(CIVIL)NO.13263 OF 2009 5 the petitioner for purchasing a House Boat. It remains to be a fact that the present whereabouts of the House Boat are not known. The transactions pursued by the petitioners and others as aforesaid invited interference by the CBI who registered a crime and investigation is going on. While so, the respondent Bank filed the necessary proceedings before the DRT Ernakulam for realization of the due amount. It was at that point of time, that the respondents 3 and 4 approached this court by filing WP(C ) 5917/08, wherein interference was declined by this Court. Subsequently, WP(C) Nos.32048/08 & WP(C)32428/08 were filed by the respondents 3 and 4, without even taking steps in SA192/08 filed before the DRT, Ernakulam under section 17 of the SARFAESI Act. The course pursued by the respondents 3 and 4 has been strongly deprecated by this Court in para 5 and 7 of Ext.R1 (a) Judgment , W.P.(CIVIL)NO.13263 OF 2009 6 observing that the orders given in favour of the persons concerned were throughly abused and violated without satisfying the conditions. However, while declining interference, this Court made it clear that, it will be without prejudice to the contentions of the petitioners therein to proceed with SA192/08 pending before the DRT. 6. The story does not end there. Subsequently, the petitioner, her husband and respondents 3 and 4 approached the CDRF, Alleppey seeking for immediate interference with the sale notified and obtained an interim stay. It was challenged by the respondent Bank before this Court, wherein the order passed by the CDRF was stayed by this Court. Finally, the absence of jurisdiction of the CDRF to entertain the matter was conceded from the part of the petitioner, which made this Court to close the said Writ Petition. W.P.(CIVIL)NO.13263 OF 2009 7 7. While so, challenging Ext.R1(a) Judgment, two Writ Appeals were filed as WA.No.104/09 and 123/09. By the time, the presiding officer of the DRT took charge and in this circumstance, the Division Bench of this Court directed SA192/08 to be finalized by the DRT. Pursuant to this, the DRT granted an interim order directing to deposit Rs.50 lakhs, which however was not complied with. Therefore, the parties approached DRAT Chennai, from where they obtained an interim stay, subject to the condition that they deposited Rs.25 lakhs (instead of Rs.50 lakhs) as borne by Ext.R1 (b). This was also not complied with, when the interim stay was vacated by the DRAT as borne by R1(c)order. The crucial point to be noted is that, the interim stay granted by the DRAT vide Ext.R1(b) was for the period till 5.5.09. It was on the just previous day of expiry of the interim order given by the DRAT, that the petitioner W.P.(CIVIL)NO.13263 OF 2009 8 turned up again before this Court by filing the present Writ Petition. 8. On considering the rival contentions and after going through the materials on record, this Court finds it very difficult to accept the statements made from the part of the petitioner as to the alleged grievance. Mere so, when the property covered by Ext.P1 and P2 are admittedly not owned by the petitioner, but belonging to the respondents 3 and 4 (son and daughter-in-law of the petitioner). The said respondents who have been filing various proceedings before the various Courts and Authorities have not chosen to approach this Court as petitioners, challenging Ext.P1 and P2 pursued by the Bank. In other words, the alleged irregularities with regard to Exts.P1 and P2 as stated by the petitioner appear to be not a matter of concern to the respondents 3 and 4 who are the actual W.P.(CIVIL)NO.13263 OF 2009 9 owners of the property. When the actual owners of the property do not have any complaint with regard to the course and steps taken by the Bank, it is certainly not for the petitioner to challenge the same. That apart, the respondent Bank has also asserted that the proceedings are being pursued strictly in accordance with law and that the 'upset price' has been fixed only after getting proper valuation report from the approved valuers. The valuation of the properties by the respondent Bank is stated as also in conformity with the valuation in the proceedings of the CBI. In the above circumstances, this Court does not find any tenable ground to interfere with the matter. The writ petition fails and it is dismissed accordingly. 9. On pronouncing the Judgment, the learned counsel appearing for the petitioner submits that a short time might be given to the petitioner so as to surrender W.P.(CIVIL)NO.13263 OF 2009 10 and that the premises would be vacated within 3 days. I heard the learned standing counsel appearing for the respondent Bank. This Court finds that the submission is a reasonable one and hence three day's time is given to vacate the building/premises; on condition that the petitioner, along with her husband and respondents 3 and 4 execute an affidavit to that effect and the same is placed before the concerned officer of the respondent Bank forthwith. P.R.RAMACHANDRA MENON JUDGE RAV