BARRY SEBASTIAN Vs. BANK OF INDIA

JUDGEMENT

(1.) The correctness and sustainability of the R.R. proceedings pursued by the respondent Bank, when, the civil suit instituted by the Bank is pending consideration before the Sub Court, Thiruvananthapuram for the purpose of quantification, is the subject matter of dispute involved in this writ petition. The petitioner is a business man engaged in fish trading, who purchases fish and such other items by way of auction from the sea shore of Vizhinjam/ Thiruvananthapuram. In connection with the requirement of business, the petitioner sought for and obtained a loan of Rs. 8,00,000/-(Rupees eight lakhs only) from the respondent Bank, on the strength of the hypothecation given over the equipments and the fish and such other items procured in the course of business. Ext. P1 is the application for the loan, after considering which, it was sanctioned as per Ext. P2. Admittedly, there occurred some default in repayment; under which circumstances, the Bank filed O.S. No. 856/2011 before the Sub Court, Thiruvananthapuram as borne by Ext. P3 plaint. The trial is going on. The grievance of the petitioner is that, it is without any regard to the pendency of proceedings before the Civil Court, that the Bank has caused to move the machinery under the R.R. Act as well, by sending a requisition to the Revenue authorities leading to Ext. P4 and P5, which is under challenge in this writ petition.

(2.) The main contention put forth by the petitioner is that, there cannot be any parallel proceeding by way of R.R., when civil suit instituted by the Bank is pending and the amount satisfied by the petitioner is still to be quantified. Reliance is sought to be placed on the decision rendered by a Single Bench of this Court reported in Sheriff v. State of Kerala, 2005 1 KerLT 873 . The next point is that, the loan availed by the petitioner is a 'business loan' and not an 'agricultural loan' or any loan under the 'priority sector/development scheme'. This being the position, though the first respondent is a notified authority under Section 71 of the R.R. Act, it is not open for the respondent Bank to pursue the proceedings for realization by deploying the machinery under the R.R. Act.

(3.) The respondent Bank has filed a counter affidavit stating that the materials produced by the petitioner do not disclose that it is not an 'agricultural loan'. The contention of the Bank is that the petitioner's business, forms part of 'Pisciculture' and hence the Bank is at liberty to proceed with steps under the R.R. Act; more so, in view of the definition of the term 'agriculture' as given under clause (b) of Ext. R1(b) of the notification No. SRO 797/79 issued in this regard. The Bank also contends that, the loan sanctioned to the petitioner being for more than Rs. 5 lakhs, it cannot be a bar to avail the remedy under the R.R. Act, in view of the law declared by a Division Bench of this Court reported in Dhanalakshmi Bank v. District Collector, 2003 1 KerLT 1024 .