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2010 Supreme(Online)(KER) 10742
HIGH COURT OF KERALA
C.K. ABDUL REHIM, J
K.NARAYANANKUTTY AND OTHERS – Appellant
Versus
THE AUTHORISED OFFICER AND OTHERS – Respondent
WP(C)/17361/2010
SRI.C.A.CHACKO, SMT.C.M.CHARISMA, SRI.N.A.SHAFEEK, SRI.M.S.UNNIKRISHNAN, SRI.K.P.SUDHEER
A guarantor's inaction in availing remedies under the SARFAESI Act weakens their position against enforcement actions, allowing the bank to proceed under the act.
Headnote:
Securitization - Guarantors - SARFAESI Act Section 14(1) - The court upheld the process under the SARFAESI Act for possession of mortgaged properties due to default, emphasizing the lack of objections from the petitioners and their failure to invoke available remedies.
Fact of the Case:
The petitioners, as guarantors for a loan, faced proceedings regarding their mortgaged properties due to a default by the borrower. The bank pursued possession under the SARFAESI Act without the petitioners raising objections to prior notices.
Finding of the Court:
The court found the petitioners failed to utilize statutory methods to challenge the proceedings and were complicit in the default. Therefore, it declined to intervene based on the constitutional jurisdiction.
Issues: Whether the petitioners could challenge the proceedings initiated under the SARFAESI Act given their failure to object at earlier stages and their alleged collusion with the borrower.
Ratio Decidendi: The decision underscored the importance of statutory procedure under the SARFAESI Act and the consequences of failing to engage appropriately with the established legal remedies.
Final Decision: The writ petition was dismissed, but the court allowed an installment payment plan for the outstanding dues.
J U D G M E N T
The petitioners are the guarantors with respect to a working capital loan availed by the third respondent, from the second respondent Bank, in the year 2008. Consequent to default committed by the third respondent, immovable properties belonging to the petitioners, which were mortgaged for securing the loan in question, were proceeded against. On invoking Section 14 (1) of the Act Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI Act). respondents 1 and 2 had approached the Chief Judicial Magistrate Court and an Advocate Commissioner was already been appointed to take over possession of the immovable properties. Ext.P2 is the notice issued by the Advocate Commissioner requesting to handover possession of the immovable properties. The proceedings is impugned on various grounds.
2. In a counter affidavit filed on behalf of the respondents 1 and 2 it is alleged that the third respondent, in collusion with the petitioners, had diverted the funds and closed down the business. It is contended that the petitioners are now adopting delaying tactics in collusion with the third respondent. With respect to the request of the petitioners to permit regularisation of the loan account, it is mentioned that, since there is diversion of funds and closing down of the business the loan account could not be regularised. It is mentioned that, as on 30.8.2010, a sum of Rs.11,95,000/- is the outstanding dues.
3. It is pertinent to note that the proceedings initiated under the SARFAESI Act is at the stage of Section 14 (1). The petitioners had not chosen to object the demand raised under Section 13 (2) nor they have approached the appellate authority invoking Section 17 (1). Fact being so, I am not at all inclined to interfere with the proceedings by invoking jurisdiction under Article 226 of the Constitution of India. Hence the writ petition is not sustainable and the same is liable to be dismissed.
4. However, learned counsel for the petitioners made an appeal to this Court to permit payment of the entire balance within a reasonable time in instalments. It is submitted that the petitioners are not intending to peruse any statutory remedy and that they are ready to relinquishing all challenges with respect to proceedings now initiated.
5. On the basis of an interim order issued by this Court on 4.6.2010, the petitioners had remitted a sum of Rs.2,00,000/-. Considering the facts and circumstances attendant in this case, eventhough interference on merits is not at all possible, I am inclined to show indulgence in permitting the petitioners to pay off the balance amount within a reasonable time, in instalments.
6. In the result, the writ petition is disposed of directing the respondents to keep in abeyance further coercive steps for dispossession and sale of the secured assets, provided the petitioners remit the entire balance in 7 (seven) equal monthly instalments, falling due on or before 15.11.2010 and on or before the 15th day of succeeding months.
7. It is made clear that on the event of default in payment of any of the instalments, the respondents will be free to proceed with further steps based on the notice already issued and on such event, the petitioners are precluded from raising any subsequent challenge against such proceedings, either before this Court or before any other forum.
