DILEEP KUMAR S.U. Vs. STATE OF KERALA

JUDGEMENT

(1.) THE petitioner is a borrower, from the 3rd respondent -Bank, who assails the recovery proceedings initiated against the property mortgaged to the Bank. The petitioner's contention, primarily, is that the petitioner is a labourer and, hence, entitled to protection under Section 60(1)(c) of the Code of Civil Procedure [CPC], which has been extended under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 [for brevity "SARFAESI Act"] by clause (g) of Section 31. The petitioner, to escape from the exclusion provided under clause (g) of Section 31, contends that no mortgage has been created with the respondent -Bank.

(2.) THE learned counsel for the respondent -Bank, however, would contend that, the contentions raised by the petitioner ought to have been urged in a Securitisation Application filed before the Debts Recovery Tribunal [for brevity 'DRT"] within forty -five days as provided under Section 17 of the SARFAESI Act. The possession of the property was taken over by the Bank in 2012; though symbolic, the limitation to approach the Tribunal runs from that date, which the petitioner does not dispute. The learned counsel would also rely on the application for loan, filed by the petitioner, produced as Annexure R3(a), to refute the factual contentions raised by the petitioner. Reliance is also placed on the decision in Kanaiyalal Lalchand Sachdev. State of Maharashtra [ : (2011) 2 SCC 782] to contend that the petitioner having not approached the Tribunal, would not be entitled to invoke the extra -ordinary remedy under Article 226 of the Constitution to agitate the contentions which ought to have been raised before the Tribunal.

(3.) IT is evident that the petitioner, again by his own admission, is working in an SSI Unit owned by his mother, as has been stated in the writ petition. Though the petitioner contends that he is a Goldsmith by birth, engaged in Blacksmithy, that alone does not make him a labourer, as it is contemplated under Section 60(1) of the CPC. The SARFAESI Act also, by clause (g) of Section 31, excludes any property, on which a security interest has been created, from applicability of Section 60 of the CPC. Hence, there is no question of the petitioner being exempted under clause (g) of Section 31 of the SARFAESI Act. The production of the records in the proceedings by the respondent -Bank, would be relevant only in the context of Section 60 CPC being made available to the petitioner. That having been found to be not applicable, for the sole reason that the petitioner is a labourer; which contention is belied by the records itself, it may not be proper for this Court to call for such documents from the respondent -Bank.