K.J. THOMAS, S/O. K.O. JOSEPH Vs. STATE BANK OF INDIA, REPRESENTED BY ITS MANAGER, STRESSED ASSETS RECOVERY BRANCH, MG ROAD, ERNAKULAM
LAWS(KER)-2017-7-295
HIGH COURT OF KERALA
Decided on July 17,2017

K.J. Thomas, S/O. K.O. Joseph Appellant
VERSUS
State Bank Of India, Represented By Its Manager, Stressed Assets Recovery Branch, Mg Road, Ernakulam Respondents

JUDGEMENT

A.K.JAYASANKARAN NAMBIAR, J. - (1.) The petitioner has approached this Court challenging Ext.P3 possession notice, issued by the 2nd respondent, under Section 13(4) of the Securitisation and Reconstructions of Financial Assets and Enforcement of Security Interest Act, 2002, (hereinafter referred to as the 'SARFAESI Act') whereby symbolic possession of the property of the petitioner has been taken. In the writ petition, it is the contention of the petitioner that, by Ext.P1 judgment, a suit filed by the 1st respondent bank, for recovery of the amounts loaned to the petitioner, was dismissed by the Sub-Court, after finding that the suit was barred by limitation. It is stated that against Ext.P1 judgment, the 1st respondent bank has filed an RFA and the said RFA is pending before this Court, where a stay has also been granted against the alienation of the property in question. It is the case of the petitioner that since the suit filed by the respondent bank has been dismissed on the ground of limitation, and the respondent bank cannot prefer a fresh suit on the same cause of action by invoking other grounds against the petitioner, the action taken in terms of the SARFAESI Act is also bad. In support of his contention, the learned counsel for the petitioner would rely on the decision of the Delhi High Court in Somanath Manocha v. Punjab and Sind Bank and Others [AIR 2012 Del. 168] as also the decision of Patna High Court in Neelu Gupta v. State Bank of India and Anr [AIR 2008 PATNA 73] .
(2.) I have heard the learned Counsel for the petitioner and the learned Standing Counsel for the 1st respondent. In the nature of the order that I propose to pass, I do not deem it necessary to hear the 2nd respondent.
(3.) On a consideration of the facts and circumstances of the case and the submissions made across the bar, I find that, it is not in dispute that the proceedings that are impugned in the present writ petition are proceedings initiated by the 2nd respondent, who is the assignee of the debt from the 1st respondent, under the SARFAESI Act. It is trite that any action taken by the secured creditor under the SARFAESI Act, is in exercise of a remedy that the secured creditor has, over and in addition to the remedies that he has for recovery of debts, as provided under any other law for the time being in force. Under the said circumstances, I am of the view that the mere fact that a suit, that was filed by the 1st respondent bank, seeking recovery of amounts from the petitioner, was dismissed on the ground of limitation, cannot be a reason to hold that the proceedings under the SARFAESI Act, initiated at the instance of the 2nd respondent, are also bad. This is more so because the period of limitation prescribed for recovery of amounts due under a mortgage is 12 years from the date of the mortgage, and it is not in dispute that, in the instant case, the said period of 12 years has not expired. The mere dismissal of the suit cannot have a bearing on other remedies that are pursued by the 2nd respondent, within the applicable period of limitation, for recovery of the very same loan amounts from the petitioner. The decisions relied upon by the learned counsel for the petitioner, while clearly distinguishable on facts, cannot also apply on the facts of the instant case in view of the decisions of the Supreme Court, that clearly hold that the remedy under SARFAESI Act is over and in addition to other remedies that a secured creditor can have, against a defaulting borrower, whose assets are mortgaged with the secured creditor. Resultantly, I am of the view that the reliefs sought for in the writ petition cannot be granted. The writ petition in its challenge against the possession notice, is therefore, rejected. I make it clear that, nothing in this judgment shall stand in the way of the petitioner approaching the Debts Recovery Tribunal for appropriate reliefs, as contemplated under the SARFAESI Act. ;


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