SREEREJ K. M, S/O. BABY RAJAN v. DISTRICT COLLECTOR, PALAKKAD
2017-04-11
SHAJI P.CHALY
body2017
DigiLaw.ai
JUDGMENT : This writ petition is filed by the petitioner seeking a declaration that the revenue recovery proceedings initiated against the petitioner and his property are without jurisdiction by the operation of Sec.18 read with Sec.34 of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 and Sec.34 of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (for short, SARFAESI Act), and also seeking other related reliefs. Brief facts for the disposal of the writ petition are as follows: 2. Petitioner had started a business in garments at Ottapalam. The unit was provided with financial facilities by the 5th respondent Bank to a tune of Rs.16 lakhs. The business had to face unforeseen reverses and ultimately closed down. According to the petitioner, substantial amount of money was repaid by the petitioner to the bank. However, the repayments could not be effected in accordance with the terms of the agreement and thereupon, Bank initiated multiple recovery actions. Bank initiated action under the SARFAESI Act and filed Original Application before the Debts Recovery Tribunal (DRT), Ernakulam, and also resorted to Revenue Recovery action. Chattels in the unit are mostly sold now in recovery action. The Bank now claims an amount of Rs.30 lakhs as the amount due. It is contended, there is no such amount actually or legally due from the petitioner to the Bank. Petitioner and the Bank had once reached at a one time settlement, and petitioner paid part of the amount towards the amount settled also. But, according to the petitioner, Bank was not able to provide the key of the unit to the petitioner in terms of the settlement, and thus the settlement failed. 3. It is also contended that the initiation of recovery action by the Bank is legally bad in view of its invoking recovery procedures under the SARFAESI Act and as also Recovery of Debts Due to Banks and Financial Institutions Act. That apart, it is contended, in view of the combined operation of Sec.34 of the SARFAESI Act and Sec.18 r/w Sec.34 of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993, the recovery actions are not maintainable. Therefore, the respondents are lacking jurisdiction to proceed with the recovery. These are the points projected by the petitioner to sustain the reliefs sought for in the writ petition. 4.
Therefore, the respondents are lacking jurisdiction to proceed with the recovery. These are the points projected by the petitioner to sustain the reliefs sought for in the writ petition. 4. Second respondent has filed a counter affidavit basically contending that statutory notices under Sections 7 and 34 of the Kerala Revenue Recovery Act were served on the petitioner in accordance with the procedure contemplated under the Act. After issuance of the notices, petitioner has submitted a representation dated 20.05.2013 against the revenue recovery action initiated by the Bank. A reply in this regard has been given to him on 04.06.2013 and the date of the letter is wrongly mentioned as 04.08.2013. The Bank had informed that the Bank agreed to settle the dues in one time settlement scheme. It was also informed by the Bank that if the party has settled the account with the Bank on the above terms and conditions, requesting to provide the keys of the above property to the petitioner in order to make arrangement for settling balance dues to them. In this regard, Ext.P9 reply dated 07.09.2013 has been given to the Bank that there is no provision to release the key without withdrawing the requisition letter. However, as per Ext.P8 letter dated 18.09.2013, Bank requested the District Collector, Palakkad to make arrangements for releasing the keys and the District Collector, Palakkad has rejected the request as per letter dated 29.10.2013. 5. However, the fact remains, even though a settlement was arrived at by and between the petitioner and the Bank to remit the due amounts in three installments commencing from 17.08.2013, petitioner failed to comply with the same. Since the petitioner did not turn up to remit the dues, the sale was posted and the last date of the sale posted was on 29.12.2015 and the sale notice for the same was issued on 25.11.2015. However, the same was adjourned consequent to the interim order passed by this Court. 6. Apart from the same, it is contended that, Notification SRO No.797/1979 of the Government of Kerala under Sec.71 of the Kerala Revenue Recovery Act is not hit by any of the provisions of the SARFAESI Act or Recovery of Debts Due to Banks and Financial Institutions Act, 1993 as alleged, and hence not liable to be declared as void and inoperative.
The requisition for revenue recovery is not an application referred to in Sec.17 of the Recovery of Debts Due to Banks and Financial Institutions Act. Therefore, the said respondent seeks dismissal of the writ petition. 7. Heard learned counsel for the petitioner, learned Government Pleader and the learned Standing Counsel appearing for the 5th respondent Bank. Perused the documents on record and the pleadings put forth by the respective parties. 8. The formidable contention advanced by learned counsel for the petitioner is that in view of the provisions contained under the SARFAESI Act as well as the Recovery of Debts Due to Banks and Financial Institutions Act, no recovery action can be initiated to recover the amount, resorting to the provisions of the Kerala Revenue Recovery Act. The said question was considered by this Court in the judgment in 'Lekshmi Enterprises v. State of Kerala' [ 2008 (2) KLT 2 ], and held that there is no express provision in the Act standing in the way of proceedings under the Kerala Revenue Recovery Act being enforced, for recovery of amounts due to a bank for the reason that the said bank has already invoked provisions of DRT Act or SARFAESI Act. It was further held that on a conspectus of the provisions of the RR Act, one will have to come to the conclusion that there is no express provision in the Act standing in the way of proceedings under the RR Act being enforced, for recovery of amounts due to a bank for the reason that the said bank has already invoked the provisions of the DRT Act or SARFAESI Act, as the case may be. The fact that the Bank has invoked its power as a mortgagee and a financial institution by instituting an application before the Debt Recovery Tribunal by itself cannot result in the bank being estopped or otherwise disabled in law from seeking to recover the amounts due to the bank from the same person, by resorting to the provisions of the RR Act. That apart, it is held that, there is no express bar in the provisions of the RR Act referable to the prosecution of any proceedings under the DRT Act or the SARFAESI Act.
That apart, it is held that, there is no express bar in the provisions of the RR Act referable to the prosecution of any proceedings under the DRT Act or the SARFAESI Act. There is nothing in the three enactments aforementioned, which could spell out the case of mutual exclusion in the operation of the three enactments thereby necessitating the creditor to express his intention to abandon the remedy under any one of the enactments before proceeding under the other two enactments. 9. So also, a learned Single Judge of this Court had occasion to consider the very same question in W.P.(C) No.19615 of 2016 and held that there is no bar created either under the DRT Act or under the SARFAESI Act, prohibiting the Bank from the proceedings under the provisions of the Kerala Revenue Recovery Act. The judgment in 'Lekshmi' supra was also taken note of, and has upheld the action of the bank. I am in respectful agreement with the view adopted in the afore-quoted judgments. 10. Taking note of the respective submissions made across the Bar, in respect of the said issue and other issues, I am of the considered opinion that petitioner has not made out any case of arbitrariness, illegality or other legal infirmities disabling the bank from proceeding against the petitioner, resorting to the provisions of the Kerala Revenue Recovery Act. That being the situation, petitioner is not entitled to get any relief under Article 226 of the Constitution of India. The writ petition fails, accordingly it is dismissed.