Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE GOPINATH P.
FRIDAY, THE 4TH DAY OF NOVEMBER 2022 / 13TH KARTHIKA, 1944 WP(C) NO. 35379 OF 2022 PETITIONER:
SUNDERASAN.N, AGED 73 YEARS, S/O NADARAJA NADAR, AYYANAR HOUSE, VAYASKARA KUNNU, PALACE ROAD, KOTTAYAM, PIN – 686 001.
BY ADV R.RAJESH(PULLIKADA) RESPONDENTS:
1 TAMILNAD MERCANTILE BANK LTD., BANGALORE CITY BRANCH, REPRESENTED BY THE BRANCH MANAGER, 19-F, B.V.K IYENGAR ROAD, BANGALORE, PIN – 560 009.
2 THE AUTHORIZED OFFICER, BANGALORE REGION, TAMILNAD MERCANTILE BANK LTD., 19-F, B.V.K IYENGAR ROAD, BANGALORE, PIN – 560 009.
3 M/S RADHABAI ASSOCIATES, REPRESENTED BY ITS PARTNER, NO.3/8-1, MYLASANDRA VILLAGE, KENGERI HOBLI, BENGALURU – 560 059.
4 DEVASENAPATHI, S/O RAJAGOPALAN, 646, 4TH STAGE, BEML LAYOUT, R.R NAGAR, BENGALURU – 560 098.
5 KULABHUSHANPANDIYAN R, S/O RAJAGOPALAN, 646, 4TH STAGE, BEML LAYOUT, R.R.NAGAR, BENGALURU – 560 098.
BY ADV G.LEKHA THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 04.11.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C) NO. 35379 OF 2022 2 JUDGMENT The petitioner has approached this Court being aggrieved by the fact that certain property belonging to the petitioner is being brought to sale under the provisions of the SARFAESI Act without following the proper procedure contemplated by the provisions of the SARFAESI Act. The petitioner is a guarantor in respect of a loan extended by the respondent Bank to respondents 3 to 5. It is the case of the petitioner that the principal borrower has substantial business as is evident from Ext.P5 returns filed by the 3rd respondent for the month of April 2022 under the provisions of the GST laws. It is submitted that there is an attempt to sell the property of the petitioner and recover some amount towards the loan liability and thereafter to restructure the loan of the principal borrower. It is submitted that if this is done, the petitioner will put to serious prejudice, injury and hardship.
2.
The learned counsel appearing for the respondent Bank states that the proceedings have been initiated under the SARFAESI Act against the principal borrower also. It is submitted that the principal borrower had filed W.P.(C)No.24580/2022 before this Court, which was later withdrawn with liberty to
WP(C) NO. 35379 OF 2022 3 approach the Debts Recovery Tribunal under Section 17 of the SARFAESI Act.
3.
The learned counsel appearing for the petitioner states that undue hurry is being shown to bring the property of the petitioner to sale. It is submitted that the sale is scheduled on 15.11.2022 and if the petitioner is relegated to his remedy before the Tribunal, the petitioner may not be able to obtain any interim order before the date of sale.
4.
Having heard the learned counsel for the petitioner and the learned counsel appearing for the respondent Bank, this writ petition is disposed of directing that if the petitioner files a securitisation application under Section 17 of the SARFAESI Act by 05.00PM on 08.11.2022 along with any interlocutory application regarding the sale scheduled on 15.11.2022, the Debts Recovery Tribunal shall ensure that the interlocutory application is considered and orders are passed before 15.11.2022.
The writ petition is disposed of with the above direction.
Sd/- GOPINATH P.
JUDGE DK
WP(C) NO. 35379 OF 2022 4 APPENDIX OF WP(C) 35379/2022 PETITIONER EXHIBITS Exhibit P1 THE TRUE COPY OF THE GST REGN CERTIFICATE OF THE 3RD RESPONDENT Exhibit P2 THE TRUE COPY OF THE STATEMENT OF ACCOUNT OF THE 3RD RESPONDENT WITH THE 1ST RESPONDENT BANK Exhibit3 THE TRUE COPY OF THE POSSESSION NOTICE AFFIXED IN THE PROPERTY OF THE PETITIONER Exhibit P4 THE TRUE COPY OF THE SALE NOTICE DATED 27.09.2022 Exhibit P5 THE TRUE COPY OF THE GST RETURN FILED BY THE 3RD RESPONDENT FOR THE MONTH OF APRIL '22