HIGH
COURT OF KERALA
Branch
Manager, Indian Bank
v.
Krishnamoorthy
M.
Sasidharan Nambiar, J.
C.
R. P. No. 633 of 2006
November
29, 2006
Section 34, read with section 13, of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 - Civil court not to have jurisdiction - Whether when a borrower did not dispute amount due and did not claim that notice sent under section 13(2) was bad for non-mentioning details as provided under section 13(3), he was not entitled to circumvent provisions of Act or avoid bar under section 34 contending that notice did not disclose details; if notice did not contain details as contemplated under section 13(3), he should have filed representation or objection as provided under section 13(3A), it was definitely not a ground to file a suit in spite of bar provided under section 34 - Held, yes
The respondent-borrower filed a suit seeking a decree for permanent injunction restraining the petitioner-bank from trespassing into his plaint property. The petitioner filed an interim application contending that the suit was not maintainable by virtue of section 34. The trial court, however, dismissed the said application. In the instant revision petition, the petitioner submitted that the respondent had borrowed the amount from it and when he committed default, it issued notice as provided under section 13(2) but instead of filing objection, the respondent rushed to the Court and filed the suit which was barred under section 34.
The facts of the case established that the petitioner had already initiated steps under the Act. A notice as provided, under section 13(2) was sent to the respondent. When a notice as provided under section 13(2) is sent to a borrower and borrower files an objection as provided under section 13(3A) the borrower has a right to raise any objection to the said notice. Sub-section (3A) provides that on receipt of the notice under sub-section (2), if the borrower makes an objection the secured creditor shall consider such representation or objection and if on such consideration comes to the conclusion that such representation or objection is not acceptable or tenable, he shall communicate within one week of receipt of such representation or objection the reasons for non-acceptance of the representation or objection. But the proviso to the sub-section makes it clear that the reasons so communicated or the likely action of the secured creditor at the stage of communication of reasons shall not confer any right upon the borrower to prefer an application to the Debts Recovery Tribunal under section 17 or the Court of District Judge under section 17A of the Act. The right of the borrower to approach the Debts Recovery Tribunal will accrue only after measures are taken under section 13(1). [Para 9]
The argument of the respondent that as the notice did not contain the details of the amount as provided under section 13(3) the respondent was entitled to approach the civil court for the remedy, could not be agreed with. When the respondent did not dispute the amount due and did not claim that the notice sent under sub-section (2) was bad for non-mentioning the details as provided under sub-section (3), he was not entitled to circumvent the provisions of the Act or avoid the bar under section 34 contending that notice did not disclose the details. If the notice did not contain the details as contemplated under sub-section (3), he should have filed representation or objection as provided under sub-section (3A). It was definitely not a ground to file a suit in spite of the bar provided under section 34. Unfortunately, the Court below did not appreciate the provisions of section 34 in the proper perspective. It appeared that the decision of the Apex Court was not brought to the notice of the court. It was absolutely clear that the suit was barred under the provisions of section 34. The impugned order was to be set aside. [Para 10]
The revision petition was disposed of accordingly. [Para 11]