Kerala High Court

Kerala High Court: In apetition filed under Article 226 of the Constitution of India. Gopinath P., J. held that the Debt Recovery Tribunal(‘DRT') has the power to set aside the sale of property, if the same is conducted in violation of the provisions of Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (‘SARFAESI Act'). The court held that the matter is beyond the scope of Article 226.

The petition was against the South Indian Bank( ‘Bank')/respondent who brought the petitioner's property to sale, for recovery of the amount due under the credit facility extended by the Bank to the petitioner, which was not repaid.

The petitioner claimed that the sale of property conducted by Bank for recovery purposes is in violation of provisions under SARFAESI Act, thus, liable to be set aside.

On the other hand, the Bank submitted that the relief sought by the petitioners through original petition filed under Article 226 of Constitution of India cannot be granted.

The Courtassented to the fact that the present application was beyond the scope of a petition under Article 226 of the Constitution of India. The Court left it over to the petitioner to establish before the DRT, in case the sale conducted by the Bank is violative of the provisions of the Security Interest Enforcement Rules.

The Court thereby dismissed the present petition, and said thatit will be open to the petitioner to impugn the sale before DRT in the pending securitisation application or in any fresh securitisation application that may be filed by him or by amending the prayers in the pending securitization application, if necessary.

[Joji Mathew v. South Indian Bank, 2022 SCC OnLine Ker 9160 decided on 22-12-2022]

Advocates who appeared in this case :

For Petitioner: Advocate M. Narendra Kumar

Advocate B. Rajesh

Advocate Harshadev M.

For Respondents : Advocate Sunil Shanker

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