Kerala High Court
WP(C)/36005/2019 of SHIBU Vs THIRUVANANTHAPURAM DISTRICT CO-OPERATIVE BANK LIMITED on 31 December 2019
COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE C.S.DIAS TUESDAY, THE 31ST DAY OF DECEMBER 2019 / 10TH POUSHA, 1941 WP(C).No.36005 OF 2019( A ) PETITIONER/S: SHIBU, AGED 36 YEARS, S/O. SIVADASAN, AIKKARAVILAKATHU VEEDU, NEAR GOVERNMENT HOSPITAL, VARKALA, THIRUVANANTHAPURAM, PIN
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.S.DIAS
TUESDAY, THE 31ST DAY OF DECEMBER 2019 / 10TH POUSHA, 1941WP(C).No.36005 OF 2019(A)
PETITIONER/S:
SHIBU, AGED 36 YEARS, S/O. SIVADASAN, AIKKARAVILAKATHU VEEDU, NEAR GOVERNMENT HOSPITAL, VARKALA, THIRUVANANTHAPURAM, PIN 695 141
BY ADVS.SRI.K.P.SUJESH KUMARSRI.V.P.BRIJESH
RESPONDENT/S:
THIRUVANANTHAPURAM DISTRICT CO-OPERATIVE BANK LIMITED, HEAD OFFICE, EAST FORT, THIRUVANANTHAPURAM, PIN 695 001 REPRESENTED BY ITS CHIEF MANAGER AND AUTHORISED OFFICER.
BY ADV SRI.THOMAS ABRAHAM – SC
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON31.12.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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JUDGMENT
The petitioner and his wife have availed aloan from the respondent-Bank. They havecreated an equitable mortgage in respect of theproperty with the Bank. However, due to acutefinancial crisis in the family, were disabledto pay off the monthly instalments as agreed.
2. The respondent-Bank has issued Section13(2) Notice under the Securitisation and Reconstruction of Financial Assets andEnforcement of Securities Interest Act ('theSARFAESI Act' for brevity) to take possessionof the property. The Chief Judicial Magistrate's Court, Thiruvananthapuram, as perorder dated 29.09.2012, in M.C.No.1145/2019 hasissued Ext.P1 notice and appointed an AdvocateCommissioner to take physical possession of theproperty.
3. The petitioner seeks only a limited
prayer, to pay off the outstanding amounts in monthly instalments.
4. I have heard Sri.K.P.Sujesh Kumar,
learned counsel for the petitioner andSri.Thomas Abraham, learned Standing Counselfor the respondent-Bank.
5. I am conscious of the judicial
pronouncement of the Hon'ble Supreme Court inUnion Bank of India v. Satyawati Tondon [(2010)8 SCC 110] and that of this Court in AuthorisedOfficer, State Bank of Travancore and Anotherv. Mathew K.C. [ILR 2018(1) KER 479] that thisCourt shall be slow in interfering with mattersunder the SARFAESI Act under Article 226 of theConstitution of India, and that the partiesshould be relegated to their statutory remediesunder the Act.
6. However, considering the submissionsmade by the learned counsel for the petitionerthat he does not dispute the amount claimed bythe respondent in Exts.P1 and P2 notices, but only wants a breathing time to pay off the entire amounts outstanding and to regularisethe loan account.
7. Therefore, I deem it appropriate to
entertain this writ petition, notwithstanding the limitation of jurisdiction of this Court asmentioned in the aforesaid judgments.
8. The learned counsel for the respondent submits that an amount of Rs.8,21,081/- is duefrom the petitioner to the Bank, which may be directed to be paid in eight monthly instalments. Per contra, the learned counsel for the petitioner submits that the petitionermay be granted 10 months' time to pay off theoutstanding amount.
9. Considering the fact that the
petitioner has volunteered to pay off the entire outstanding amount, I feel that some leniency can be shown in favour of the petitioner.
Accordingly,inexerciseofthe
jurisdiction of this Court under Article 226 ofthe Constitution of India, I dispose of theWrit Petition as follows:
i)The petitioner is directed to pay theoverdue amount of Rs.8,21,081/-, as on today,along will along with all applicable charges and interest in ten monthly instalments commencing from 15.01.2020.
ii) In addition to the above amount, the petitioner shall also pay the regular equatedmonthly instalments as per the time schedulefixed therein, without fail.
iii) If the petitioner makes the aforesaidpayment, the loan account shall stand regularised and he will be at liberty toservice the loan account as per the originalterms of the sanctioned loan amount.
iv) Needless to mention that if the
Conclusion
petitioner commits any default in payment of the amount as directed above, the benefitgranted to him by this judgment will standvacated and the Bank will be at liberty toresurrect the SARFAESI proceedings and recoverthe entire liability from the petitioner. It isalso made clear that the directions in thejudgment are peremptory in nature and thepetitioner shall comply with the same withoutcommitting any default. No further request forextension or modification for the judgmentshall be permitted, unless in exceptionalcircumstances.
This Writ Petition is ordered accordingly.
RR
Sd/-
C.S.DIAS
JUDGE
APPENDIX
PETITIONER'S/S EXHIBITS:
EXHIBIT P1TRUE COPY OF MEMORANDUM OF M.C NO. 1145/2019 ON THE FILE OF THE CHIEF JUDICIAL MAGISTRATE COURT, THIRUVANANTHAPURAM, DATED 29/09/2012.
EXHIBIT P2TRUE COPY OF THE NOTICE ISSUED BY THEADVOCATE COMMISSIONER, DATED 28/12/2019