IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN MONDAY, THE 1ST AUGUST 2011 / 10TH SRAVANA 1933 WP(C).No. 15803 of 2011(A) -------------------------- PETITIONER(S) :- ------------------------- 1. SHIHAB, AGED 29 YEARS, S/O.KUNJU MUHAMMED RAHMATH MANZIL, AROOR MURI, CHERTHALA, ALAPPUZHA. 2. NISHAD, AGED 43 YEARS, S/O.KUNHU MUHAMMED, VELLAZATHU, NADUVTH NAGAR.P.O, CHERTHALA. 3. XAVIER, AGED 62 YEARS, S/O.LATE PAILY, ANI BHAVAN, KUTHIATHODU.P.O, CHERTHALA. BY ADV. SRI.B.PRAMOD RESPONDENT(S) :- -------------------------- 1. THE AUTHORISED OFFICER, UCO BANK, WELLINGTON ISLAND, BRISTO ROAD, KOCHI. 2. UCO BANK, WELLINGTON ISLAND BRANCH, BRISTO ROAD, KOCHI REPRESENTED BY ITS MANAGER. 3. K.T.UNNIKRISHNAN, KUNCHANVELIYIL, ERAMALLOOR.P.O, CHERTHALA – 688 514. ADV. SRI.GEORGE KARITHANAM VARGHESE, SC FOR R1 & R2 SRI.SAKIR.K.H. FOR R3 SRI.A.V.CHARLES FOR R3 SRI.ANIL R.NATH FOR R3 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 01/08/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: jvt WP(C).No. 15803 OF 2011 APPENDIX Petitioner's Exhibits :- Ext.P1 :- Copy of the lease deed executed between the 1st petitioner and the 3rd respondent. Ext.P2 :- Copy of the lease deed executed between the 2nd petitioner and the 3rd respondent. Ext.P3 :- Copy of the lease deed executed between the 3rd petitioner and the 3rd respondent. Ext.P4 :- Copy of the judgment in W.A.No.619/2010 of the Hon'ble High Court of Kerala. Ext.P5 :- Copy of the judgment in W.P.(C)No.32123/2010 of the Hon'ble High Court of Kerala dtd.17-1-2011. Ext.P6 :- Copy of the notice dated 20-04-2011 issued by the advocate commissioner. Ext.P7 :- Copy of the sale notice dated 23-05-2009 published by the 1st respondent. Respondent's Exhibits :- NIL. //True Copy// P.A. to Judge S.SIRI JAGAN, J. ------------------------------------- WP(C) No.15803 of 2011 -------------------------------------- Dated this the 1st day of August, 2011 JUDGMENT Petitioners are tenants evicted from a secured asset by the respondents 1 and 2, in proceedings under the Securitization And Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI ACT). Their contention in this writ petition is that they have deposited amounts as security before the third respondent while taking the building in question on lease, which have not been returned by the third respondent to the petitioners. They would submit that the respondents 1 and 2 have decided to sell the secured asset by private sale in which case their chance to get their deposits out of the balance sale proceeds would be seriously prejudiced. Petitioners therefore seek the following reliefs:- “(i) Issue a writ of mandamus or any other appropriate writ order or direction commanding the 1st and 2nd respondents to proceed with the steps to sell all the secured assets mentioned in Ext.P7 sale notice by inviting tenders from public or by public auction and not to sell the 3rd respondent's property by private treaty. (ii) Issue any appropriate writ of mandamus or any other writ order or direction commanding the 1st and 2nd respondents to pay to the petitioners the security amounts mentioned in Ext.P1 to P3 lease deeds form the excess sale consideration after satisfying the debt due to the 2nd respondent bank.” WP(C) No.15803 of 2011 : 2 : 2. I do not think that the petitioners can claim that the bank should pay to them the security deposit due from the third respondent. But, the petitioners can certainly proceed against the balance amount which may be available out of the sale proceeds after satisfying the amounts due to respondents 1 and 2. The counsel for the bank submits that presently they have no intention to sell the property by private sale although the Act gives them the liberty to do that also. They may or may not in future decide to sell the property by private sale or by public auction, right in respect of which they reserve to themselves. 3. In the above circumstances, the remedy of the petitioners lie in filing a suit before the appropriate Civil Court against the third respondent for recovering the deposit or to proceed against the balance sale consideration as and when the respondents 1 and 2 liquidates the secured asset. Without prejudice to that right, this writ petition is dismissed. S.SIRI JAGAN JUDGE dmb