Reji vs State of Kerala and Others

T.R. Ramachandran Nair, J.—The petitioner herein is aggrieved by the steps taken by the 4th respondent Bank to sell the property covered by EXT. P1 sale deed which, according to the petitioner, was purchased by the petitioner after fully satisfied about the title of the 5th and 6th respondents. According to the petitioner, after the sale deed was executed, he is in possession of the property and he is also enjoying the same. The plea raised by the petitioner appears to be that the vendor has indulged in committing fraud by not disclosing the mortgage in favour of the 4th respondent. Various other allegations also have been raised in the writ petition.

Learned Standing Counsel for the Bank, who appeared on furnishing of a copy of the writ petition, after getting instructions submitted that the sale notice was published pursuant to the proceedings initiated by the Bank under the SARFAESI Act and the notice itself is dated 25.07.2012. The auction is scheduled to take place tomorrow. It is submitted that the property was mortgaged to the Bank by the 5th respondent and therefore, the plea raised by the petitioner in the writ petition cannot have any credence at all. It is also submitted that the petitioner''s remedy if any is to approach the Debt Recovery Tribunal. It is further submitted that the notice issued u/s 13(2) of the SARFAESI Act is dated 13.02.2009 i.e. before the date of sale in favour of the petitioner and the possession was taken on 18.04.2011. Learned counsel for the petitioner vehemently submitted that there is a clear marketable title for the vendor and the sale proceedings if conducted will prejudice the petitioner. In fact, the writ petition is not one challenging the proceedings under the SARFAESI Act. It is clearly a case that the petitioner wants to establish his title and possession of the property.

I am not going into the said controversies herein since various disputed questions of fact are there. Evidently, the petitioner is not a defaulter to the Bank. Since the petitioner is having an effective alternate remedy, this writ petition is dismissed leaving open the remedy of the petitioner to avail such remedies.