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2016 Supreme(Online)(KER) 3146
HIGH COURT OF KERALA
A.M.SHAFFIQUE, J
MANOJ KUMAR V NAIR – Appellant
Versus
AUTHORISED OFFICER CHIEF MANAGER – Respondent
WRIT PETITION (CIVIL) 33965/2014
The court reiterated that questions of fact, such as receipt of notice, should be resolved through appropriate legal channels rather than through a writ petition.
Headnote:
SARFAESI - Sale of Secured Asset - Section 13(2), 13(3) - Court upheld the validity of the sale proceedings under the SARFAESI Act, focusing on the notice requirements and the burden of proof on the petitioner regarding receipt of notice.
Fact of the Case:
The petitioner challenged the bank's sale of a secured asset, claiming he did not receive notice of the sale. The bank countered that proper notice was sent and acknowledged by the petitioner's agent.
Finding of the Court:
The court found that the notice was served to the petitioner’s address, as evidenced by acknowledgment from the postal service. Issues regarding notice were deemed factual and not suitable for determination in a writ petition.
Issues: Whether the notice of sale was validly served to the petitioner under the SARFAESI Act.
Ratio Decidendi: Disputed factual issues regarding notice cannot be adjudicated in a writ petition. The petitioner had not availed the alternative remedies available under the statute.
Final Decision: Writ petition dismissed.
JUDGMENT
Petitioner claiming to be a co-obligant, challenges the proceedings by which the respondent Bank had conducted sale of secured asset under the SARFAESI Act .
2. The main contention urged by the petitioner is that he was not given any notice regarding the sale of the property.
3. Counter affidavit has been filed by respondents 1 to
3 inter alia stating that the sale notice dated 21.8.2014 has been issued to the petitioner by registered post with acknowledgment due and had been received by the petitioner's agent at the address on 23.8.2014. Ext.R1 (b) is the acknowledgment card. The sale notice was published in Mathrubhumi daily dated 24.8.2014, which is produced as Ext. R1 (c) and Indian Express daily dated 24.8.2014 produced as Ext. R1 (d). The sale was held on 25.9.2014 and the sale had been confirmed. The property was purchased by the fourth respondent.
4. A reply has been filed by the petitioner producing Ext.P11 in order to contend that the parcel was not received by the petitioner. Ext.P11 appears to be an intimation from the Department of Post. There is nothing to connect Exts.R1 (a) and R1(b) with Ext.P11. Whether notice was served to the petitioner or not is purely a question of fact which cannot be decided by this Court in a writ petition under Article 226. Prima facie on the basis of the materials made available by the Bank, it appears that the notice had been served in the address of the petitioner, which he disputes. Disputed questions of fact cannot be decided by this Court. Hence, the petitioner having not availed of the alternative remedy available under the statute, I do not think that this Court will be justified in interfering with the sale of property at this stage of proceedings. Writ petition is therefore dismissed.
