Clean hands are essential for relief under Article 226 in SARFAESI matters.

J U D G M E N T

Petitioner has approached this Court challenging proceedings initiated under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act ,2002 (hereinafter referred to as the SARFAESI Act) by HDFC Bank Ltd. [The writ petition has been filed impleading the Housing Development Finance Corporation Ltd, which had merged with the HDFC Bank Ltd in the year 2023].

The brief facts:-

2. The petitioner along with her husband earlier approached this court by filing W.P (C) No.10774/2022 challenging proceedings then initiated under the SARFAESI Act. That writ petition was disposed of by Ext.P1 judgment permitting the petitioner and her husband to repay the then overdue amount in some instalments. Though certain amounts were paid by the petitioner and her husband, the terms of the judgment were not fully complied with prompting the bank to proceed further with measures under the SARFAESI Act. The petitioner then approached the Debts Recovery Tribunal-I, Ernakulam by filing S.A. No.466/2022. The Tribunal granted an interim order subject to conditions. That interim order was challenged before this court by filing OP (DRT) No.456/2022 which, was disposed of on 06-01- 2023. It is clear from a reading of the judgment in OP (DRT) No.456/2022, that the counsel appearing for the petitioner had taken a specific stand before this court at that point in time that the petitioner does not wish to pursue the securitization application on merits and only requires some further time to pay off the amounts due to the bank. Owing to the extremely fair stand taken by the bank at the time of the hearing of OP (DRT) No.456/2022, the petitioner was again permitted to pay off the overdue amount in instalments. The petitioner was also required to withdraw S.A No.466/2022. However, the petitioner failed to comply with the conditions imposed while disposing of OP (DRT) No.456/2022. The filing of OP (DRT) No.456/2022 has not even been disclosed in this writ petition. The securitization application has not yet been withdrawn and is pending before the Tribunal. When the bank proceeded with measures under the SARFAESI Act, a relative of the petitioner filed O.S. No.183/2024 before the Munsiff’s Court, Ottapalam claiming to be a tenant of the premises in question under an unregistered lease deed for a period of 9 years. The Munsiff’s Court initially granted an order of injunction which was later vacated at the instance of the bank. An Advocate Commissioner appointed in proceedings under Section 14 of the SARFAESI Act by the Chief Judicial Magistrate Court, Palakkad was scheduled to take possession of the secured asset on 22-03-2025. However, the Advocate Commissioner did not take possession on the ground that he had been informed that this writ petition had been filed before this Court.

3. The learned Senior counsel appearing for the bank would submit that in the facts and circumstances noted above, the filing of this Writ Petition is an abuse of the process of this Court. It is submitted that there is no co- operation from the Advocate Commissioner appointed by the Chief Judicial Magistrate Court, Palakkad. It is submitted that in such circumstances the respondent bank is not in a position to accede to any further accommodation and the writ petition deserves to be dismissed in limine.

4. The learned counsel for the petitioner submits that he was not aware of OP (DRT) No.456/2022 filed by the petitioner and seeks time to get instructions.

5. This court exercises limited jurisdiction in matters arising under the SARFAESI Act and where the borrowers do not approach this court with clean hands, they are not entitled to any relief in the exercise of the discretionary jurisdiction vested in this cou