DILEEPKUMAR M C Vs. STATE OF KERALA

JUDGEMENT

(1.) The issue raised in this writ petition is with regard to the legal validity of the action taken by a District Co-operative Bank to recover amounts due from the petitioner by recourse to the provisions of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (for short, 'SARFAESI Act'). The petitioner primarily seeks a declaration that the provisions of the Kerala Co-operative Societies Act, 1969 (for short, 'the Act') will prevail for recovery of amount due from the petitioner and that the SARFAESI Act stands ousted. Exhibit P4 notice issued under the SARFAESI Act is under challenge as being in violation of the provisions of the Act.

(2.) Heard learned counsel for the petitioner and the learned Standing Counsel for the respondent Society as well as the learned Government Pleader.

(3.) Learned counsel for the petitioner places reliance on the decision of three Judge bench of the Apex Court in Greater Bombay Co-op. Bank Ltd. v. United Yarn Tex (P) Ltd., (2007) 3 KerLT 302 (SC)]. Relying on the observations in paragraph 26 of the said judgment, the learned counsel would contend that the Apex Court has held that in view of the definition of 'banking company' as provided in the Banking Regulation Act and in the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (RDB Act) as well as the definition of "Banking Company" under the SARFAESI Act, it is clear that banking company does not include a Co-operative Bank. It is further contended that the bench had come to the conclusion that Co-operative Banks established under the State Co-operative Societies Act and Multi-State Co-operative Societies Act, 2002 transacting the business of banking, do not fall within the meaning of "banking company" under the Banking Regulation Act and therefore the provisions of the RDB Act are not applicable to the recovery of dues by the cooperative societies from their members.