IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM WEDNESDAY, THE 6TH APRIL 2011 / 16TH CHAITHRA 1933 WP(C).No. 6111 of 2011(L) ------------------------------------ PETITIONER: ------------------- FRANCIS.P.P., AGED 51 YEARS, S/O.PAUL P.X., PUNNACKAL HOUSE,ANDHAKARANAZHY POST, ALAPPUZHA DISTRICT. BY ADV. SMT.E.V.MOLY. RESPONDENTS: ------------------------ 1. STATE BANK OF TRAVANCORE, (ASSOCIATE OF STATE BANK OF INDIA) REGION III, ZONAL OFFICE, ERNAKULAM, REPRESENTED BY ITS AUTHORIZED OFFICER, PIN -682 036. 2. STATE OF KERALA, REP.BY SECRETARY, DEPARTMENT OF FISHERIES,THIRUVANANTHAPURAM-695 001. 3. KERALA STATE FISHERMEN DEBT RELIEF COMMISSION, NANTHANKODU, THIRUVANANTHAPURAM-3, REPRESENTED BY ITS SECRETARY, PIN -695 001. R1 BY ADV. SRI.SATHISH NINAN. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 06/04/2011,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: prv. C.K.ABDUL REHIM, J. ------------------------------- W.P.(C).No. 6111 of 2011 ------------------------------- Dated this the 6th day of April, 2011. J U D G M E N T Challenge in this writ petition is against proceedings initiated under Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI Act), which is initiated consequent to default committed by the petitioner in repaying a housing loan availed from the 1st respondent bank, in the year 2007. The petitioner is claiming benefit of the moratorium declared by the State Government against recovery of debts due from fishermen, under the provisions of the Kerala Fishermen Debt Relief Commission Act. According to the petitioner, he had already approached the Kerala Fishermen Debt Relief Commission seeking relief for waiver of the arrears in the loan account, under the provisions of the said Act, and an application filed in this regard is pending disposal before the commission. 2 W.P.(C).No. 6111 of 2011 According to the petitioner, without considering such claim the coercive steps were initiated and the 1st respondent bank had approached the Chief Judicial Magistrate Court invoking Section 14(1) of the SARFAESI Act. Ext.P4 is a notice issued by the Advocate Commissioner appointed by that court, requiring the petitioner to hand over the possession of the immovable property, which is a secured assets. 2. The contentions of the petitioner was disputed in a statement filed on behalf of the 1st respondent, wherein it is averred that the petitioner is not a fisherman. It is stated that the petitioner is employed as Deck-hand, in a fishing vessel namely on 'Jordhan Fishing Vessel' at Chennai. It is further stated that, wife of the petitioner is a co-borrower in availing housing loan and as per the details given in the application for availing the loan, she is working as a teacher at St.Joseph's Public School, Pattanakkad. Under such circumstances claim for the benefit under the Kerala 3 W.P.(C).No. 6111 of 2011 Fishermen Debt Relief Commission Act is unsustainable, is the contention. 3. In reply, the petitioner had produced Ext.P5 Pass Book issued by the Kerala Fishermen Welfare Board, which will indicate that the petitioner is a member registered under the Fishermen Welfare Board. The petitioner is also disputing correctness of the amount now demanded for recovery, on the basis that the payments already effected by the petitioner has not been given due credit. 4. Considering the facts it is clear that the dispute could not be resolved in this writ petition. Considering the effective statutory remedy available under the SARFAESI Act, this Court was not inclined to entertain this writ petition. However, dispossession of the petitioner from the property was stayed subject to condition of the petitioner remitting a sum of Rs.50,000/- (Rupees fifty thousand only) within 2 weeks from 22.3.2011. It is conceded that the petitioner has not remitted the said amount. On the other 4 W.P.(C).No. 6111 of 2011 hand, the petitioner had filed an application seeking modification of the interim order. 5. The question whether the petitioner is entitled for the benefits under the order of the State Government (Ext.P1) or as to whether he is entitled for a waiver of the amounts under the provisions of the Kerala Fishermen Debt Relief Commission Act, are matters which need be evaluated on the basis of factual aspects. Further, the dispute regarding correctness of the amounts under demand is also a matter which need be agitated before the appropriate forum. Considering the effective remedy provided under the SARFAESI Act, I am of the view that, the dispute raised in this writ petition could not be agitated in a proceeding under Article 226. 6. Under the above circumstances, the writ petition is dismissed, without prejudice to rights if any available to the petitioner to invoke statutory remedy against the proceedings now initiated. 5 W.P.(C).No. 6111 of 2011 7. However, in order to facilitate the petitioner to seek appropriate remedy either by approaching the statutory forum or by approaching the authorities of the 1st respondent bank, dispossession of the petitioner pursuant to Ext.P4, shall be kept in abeyance for a period of 2 weeks from today. C.K.ABDUL REHIM, Judge ami/