BHUVANENDRAM Vs. LIC HOUSING FINANCE LTD

JUDGEMENT

(1.) THE petitioner has approached this Court challenging Exts. P2 and P5 notices issued by the Secured Creditor invoking the relevant provisions under the SARFAESI Act. The case of the petitioner is that, he has already approached the Civil Court by filing o. S. 219 of 2005, for settlement of accounts and unless and until the same is finalized, no proceedings under the SARFAESI Act will lie.

(2.) YET another contention raised by the petitioner is that, in response to the averments in the plaint filed before the Civil Court, the Secured Creditor has filed Ext. P1 written statement, wherein the question of maintainability of the suit is also raised stating that, the proceedings under the SARFAESI Act had been taken much prior to the institution of the suit by issuing notice under S. 13 (2) on 18. 12. 2004 and hence that the Secured creditor is very much entitled to proceed with such steps under the Act. During the course of the proceedings before the Civil Court, the Secured Creditor issued Ext. P5 notice under S. 13 (2) of the Act again, stating that the earlier notice and records were not traceable (in response to a petition filed by the petitioner for causing production of the details ). The specific contention of the petitioner is that, no second notice under S. 13 (2) will lie and hence that the proceedings under the SARFAESI Act, are liable to be declared as unsustainable.

(3.) WITH regard to the main prayer i. e. for a declaration that the suit filed by the petitioner before the Sub Court, Kollam far settlement of accounts is not barred under the provisions of the SARFAESI Act, the learned counsel for the petitioner submits that, the bar of jurisdiction is only with regard to the sustainability of the steps taken by the secured Creditor and to see whether it is in accordance with the provisions of the sarfaesi Act and nothing more. It is also pointed out that, the right of the petitioner to dispute the quantum of liability, as well as other incidental aspects as to the actual amount due are not at all barred and that the petitioner is very much entitled to challenge the same by filing a suit before the Civil Court.