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High Court of KeralaWP(C)/17394/2015disposed of

P.V.John v. The Authorized Officer

2015-07-13Honourable Mr. Justice A.Muhamed Mustaque5 pages

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT:

THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE MONDAY, THE 13TH DAY OF JULY 2015/22ND ASHADHA, 1937 -------------------------------------- PETITIONER(S):

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1. P.V.JOHN, S/O.VARKEY, PUNNAMATTATHIL HOUSE, MUNDAKKAYAM POST, KOTTAYAM.

2. THANKAMMA JOHN, W/O.P.V.JOHN, PUNNAMATTATHIL HOUSE, MUNDAKKAYAM POST, KOTTAYAM.

3. JOJI VARGHESE P. JOHN, S/O.P.V.JOHN, PUNNAMATTATHIL HOUSE, MUNDAKKAYAM POST KOTTAYAM.

4. JYOTHI ANN JOHN, D/O.P.V.JOHN, PUNNAMATTATHIL HOUSE, MUNDAKKAYAM POST KOTTAYAM.

5. FR.BIJU.K.MATHAI, KAVATTU HOUSE, KOMPANADU POST, KOTTAYAM DISTRICT. BY ADVS.SRI.GEORGE POONTHOTTAM SRI.SAJI VARGHESE KAKKATTUMATTATHIL RESPONDENT(S):

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1. THE AUTHORIZED OFFICER, UNDER THE SARFAESI ACT, UCO BANK, CYRILS TOWERS, RAILWAY STATION ROAD, NEAR COLLECTORATE, KOTTAYAM-686 001.

2. BALASUBRAMONI, S/O.NALLUTHEVAR, 26, 28/W-7, KRISHNA VATHIYAR STREET, KAMAYAGOUNDANPATTI UTHAMAPALAYAM TALUK, THENI DISTRICT, TAMILNADU STATE.

3. P.N.T.CHANDSRU S/O.THIRUNAVUKARASU, 3/514, J.J.NAGAR MUGAPER EAST, CHENNAI.

Msv/ -2-

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4. VIMALACHANDRU, W/O.P.N.T.CHANDRU, 3/514, J.J.NAGAR, MUGAPER EAST, CHENNAI.

5. B.AMARJOTHY, W/O.N.BALASUBRAMONI, 26, 28/W-7, KRISHNA VATHIYAR STREET, KAMAYAGOUNDANPATTI, UTHAMAPALAYAM TALUK, THENI DISTRICT, TAMILNADU STATE. R1 BY ADVS. SRI.DEEPAK JOY K.

SRI.GEORGE KARITHANAM VARGHESE,SC,UCO B THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 13-07-2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: msv/

--------------------------------------- APPENDIX PETITIONER(S)' EXHIBITS ------------------------------------- EXHIBIT-P1: A TRUE COPY OF THE NOTICE DATED 3.2.2015 ISSUED TO THE PETITIONERS AND THE GUARANTORS.

EXHIBIT-P2: A TRUE COPY OF THE REPLY BY THE PETITIONERS DATED 31.3.2015. EXHIBIT-P3: A TRUE COPY OF THE POSSESSION NOTICE BY THE 1ST RESPONDENT DATED 19.5.2015.

EXHIBIT-P4: A TRUE COPY OF THE POSSESSION NOTICE BY THE 1ST RESPONDENT DATED 19.5.2015.

RESPONDENT(S)' EXHIBITS:

----------------------------------------- NIL //TRUE COPY// P.S.TO JUDGE Msv/

A. MUHAMED MUSTAQUE, J.

-------------------------------------------- W.P(C). No. 17394 of 2015 ------------------------------------------- Dated this the 13th day of July, 2015

J U D G M E N T

Petitioners are the partners of M/s.Eden Cardamom Estate, a partnership firm. They approached this Court challenging initiation of SARFAESI proceedings in respect of collateral security offered by them for the loan advanced to the partnership firm.

2.

The collateral security consists of a residential building. According to the petitioner, the primary security is the Cardamom Plantation. It is submitted that, respondents are bound to proceed against the primary security before initiating proceedings against the petitioner's residential building, which is given as a collateral security. It is further submitted that, there is no impediment under law in proceeding against Cardamom Plantation under SARFAESI Act as it is not an agricultural land.

3.

Learned counsel for the Bank submits that, the Bank is entitled to proceed against both properties and Bank also has filed an Original Application as O.A. No.226/2015, before the DRT. He also submits that, without knowledge of the Bank, the petitioner had sold Cardamom Plantation to the party

W.P(C). No. 17394 of 2015 respondents and Bank is entitled to proceed against all the properties in accordance with law.

4.

I am of the view that, the substantial grievance of the petitioner can only be resolved through appropriate proceedings before the DRT. It is for the DRT to decide the manner in which the recovery has to be effected by the Bank. The DRT will have full control over the entire proceedings till finalisation.

In that view of the matter, this writ petition is disposed of with liberty to the petitioner to agitate this issue before the DRT. To work out the relief before the DRT, coercive steps against the petitioner shall be deferred for a period of 6 weeks. Sd/- A. MUHAMED MUSTAQUE, JUDGE.

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