Once a valid mortgage is established before a decree, the decree holder cannot challenge actions under SARFAESI Act for recovery.

JUDGMENT

The original petition has been filed by the decree holder in E.P.No.1/2019 in O.S.No.8/2018 pending before the Commercial Court, Perumbavoor challenging the proceedings initiated by the 1^st respondent under the SARFAESI Act . The case of the petitioner is that there was an agreement for sale between the petitioner and the 5^th respondent and the suit has been filed on 20.02.2018. The suit was decreed as per a mediated settlement for payment of money. The petitioner obtained an order of attachment against the properties of the 5^th respondent. It is submitted that his rights as per the decree is being frustrated because of the proceedings initiated by the 1^st respondent against the properties in question for recovery of a loan availed from them.

2. Heard Sri.Jithesh Menon, Standing Counsel appearing for the Bank. It is seen that the mortgage in favour of the Bank was on 25.09.2017, much before the filing of the suit and the order of attachment. As such, it will not be legally permissible to permit the petitioner to challenge the proceedings initiated by the Bank, for which they have sanction under the SARFAESI Act . The petitioner will have to seek other remedies for execution of the decree against the 5^th respondent. On the date on which the original petition was filed, physical possession has also been taken by the Bank.

In the above circumstances, this original petition is closed without prejudice to the right of the petitioner to seek other remedies for execution including the right to move the Debt Recovery Tribunal with an appropriate petition.

Sd/-