IMPORTANT POINT
Securitisation Act shall have overriding effect over other laws for the time being in force – Under Article 246 of Constitution of India, law enacted by Parliament has to be given primacy over State laws.

JUDGMENT

Can the Kerala Fishermen Debt Relief Commission interdict a secured creditor from enforcing the security interest created under the provisions of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (for short, the Securitisation Act) is the question before this Court? Petitioner, State Bank of India, challenges Ext.P8 order passed by the Kerala State Fishermen Debt Relief Commission (KSFDRC) wherein the measures under the Securitisation Act is interdicted. The main ground of challenge against Ext.P8 order is that the Securitisation Act overrides the provisions of the Kerala Fisherman Debt Relief Commission Act 2008.

2. The averments in the writ petition shows that by Ext.P1 application dated 19.8.2008, the 1st respondent availed a credit facility in the form of housing loan. On default, the bank initiated measures under the Securitisation Act on 6.10.2016. Once the measures were initiated, the 1st respondent approached this Court by filing W.P.(C) No.12744 of 2017 which resulted in Ext.P4 judgment wherein, the 1st respondent was given liberty to pay the outstanding amounts in twelve monthly installments. On default, the bank moved the jurisdictional Magistrate under Section 14 of the Securitisation Act and obtained Ext.P5 order appointing a Commissioner for taking physical possession of the secured asset. In the meantime, the 1st respondent seems to have approached the 2nd respondent, the KSFDRC, with an application for waiver on 19.3.2018. By Ext.P7, the bank raised objection and also stated that the issues could be amicably settled. On 04.04.2018, the 2nd respondent issued the impugned order- Ext.P8 by which the secured creditor was directed to hand over the keys of the secured asset to the complainant with a further direction to the petitioner bank not to take coercive steps without the permission of the 2nd respondent. Challenging the aforesaid directions, the petitioner has approached this Court with the present writ petition.

3. I have heard Sri. Amal George, the learned counsel appearing for the petitioner, Sri. T.B. Hood, the learned counsel appearing for the 1st respondent and Sri. T.G. Sunil, the learned Standing Counsel appearing for the 2nd respondent.

4. While deciding the validity of Exhibit P8 order, this Court is called upon to decide the jurisdiction of the 2nd respondent to issue Ext.P8 order.

5. Sri. Amal George, the learned counsel points out that in terms of the provisions contained under Section 35 of the Securitisation Act, the authority of the 1st respondent is ousted. In short, the contention of the petitioner is that the Securitisation Act being a Central Statute and the law enacted by the Parliament, the operation of the Kerala State Fishermen Debt Relief Commission Act, 2008 (Act 18 of 2008) is not applicable. Sri. T.B. Hood, the learned Counsel for the 1st respondent supported the findings of the 2nd respondent in Exhibit P8 order. He would argue that the 1st respondent was justified in moving the 2nd respondent since it has the power under the Act 18 of 2008 to issue directions in respect of loans availed by fisherman in distress.

6. On consideration of the points raised in the writ petition, I find substantial force in the contentions of the learned counsel appearing for the petitioner.

7. Section 35 of the Securitisation Act specifically provides that the Act shall have overriding effect over other laws for the time being in force. The provisions under Section 35 of the Securitisation Act opens with a non obstante clause. The effect of non obstante clause in a statute came up for consideration before this Court in the decision rendered in Rajan P Kuttan and another vs. State of Kerala 2021(6) KHC 513 wherein it was held by the Division Bench of this court as follows:—

“A non obstante clause is generally appended to the section to give enacting part of the section, in case of conflict an overriding effect over the provisions in the sa