Dismissed

M.Chandrasekharan v. State of Kerala

Kerala HC8 Feb 2008WP(C)/1628/2008

Case brief

AI extract

What is this about?

The petitioner, challenging dis possession after a bank auction under the SARFAESI Act, claimed eligibility for a government moratorium due to being a fisherman and Tsunami relief coverage. The Court rejected this as the petitioner acted as a sales manager, loans were for copra business, and the moratorium applied to the loan identity not the recovery stage; thus, physical dis possession remained

What did the court decide?

The writ petition failed as the petitioner was not eligible for the moratorium and the power to dis possess remained unaffected.

M.Chandrasekharan Vs State of Kerala — Banking and Recovery | Kerala HC (2008)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT :

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THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN

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FRIDAY, THE 8TH FEBRUARY 2008 / 19TH MAGHA 1929

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WP(C).No. 1628 of 2008(R) ------------------------------------

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PETITIONER:

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------------------

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M.CHANDRASEKHARAN, AGED 42 YEARS, S/O.KRISHNAN, MATTUVAYIL P.O., ELATHUR, KOZHIKODE.

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BY ADV. SRI.MANJERI SUNDER RAJ SMT.SUSAN JACOB SRI.MANJERI SUBIN SUNDER RAJ

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RESPONDENTS:

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-----------------------

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1. STATE OF KERALA, REP. BY SECRETARY TO GOVERNMENT, MINISTRY OF FISHERIES AND PORTS, TRIVANDRUM. REP. BY GOVERNMENT PLEADER, HIGH COURT OF KERALA, ERNAKULAM.

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2. THE AUTHORIZED OFFICER/GENERAL MANAGER, CALICUT CO-OPERATIVE URBAN BANK LTD., KALLAI ROAD, KOZHIKODE-673 002.

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R2 BY ADV. SRI.DEVAPRASANTH.P.J. GOVERNMENT PLEADER SMT. ANU SIVARAMAN

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 08/02/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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Thottathil B. Radhakrishnan, J. ================================== W.P.(C)No.1628 of 2008

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==================================

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Dated this the 8^th day of February, 2008.

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JUDGMENT

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Petitioner availed a loan from the second respondent. That Bank invoked the provisions of the SARFAESI Act. A sale was held in 2006 and the property was purchased by a third party. All that remains is dispossession of the petitioner in the physical sense and actual delivery of property to the Bank to carry out its obligations to deliver possession to the third party auction purchaser. The Chief Judicial Magistrate has issued an order

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to that effect. It is stated by the learned

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counsel for the petitioner that the order has been challenged by filing a Criminal Revision Petition before this Court.

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Government issued Ext.P3 Government Order dated 2-

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WPC1628/2008

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-:2:-

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11-2007 declaring moratorium regarding recovery of certain loans availed by fishermen. Petitioner, claiming that he is a fisherman, contends that he

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is entitled to the benefit of Ext.P3. He also contends that there is a total ban of recovery in the area where the sold property is situated, on

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account of certain relief measures extended by the Government, relating to Tsunami.

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There is some controversy between the parties as to whether the petitioner is a fisherman. Exts.P4 and P5 are issued by the

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Village Officer and the Councillor of the Panchayat ward where the petitioner resides. Those documents are issued stating that the petitioner and his mother are fishermen by avocation. Learned counsel for the petitioner has placed before me the loan application on the basis of which the facility in question was extended. Petitioner has described himself as a sales manager. The purpose of the

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WPC1628/2008

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-:3:-

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loan was copra business.

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petitioner is right in saying that the sweep of Ext.P3 does not depend upon the purpose of the loan, but on the identity of the debtor, the

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benefit extended by Ext.P3 is one that came into operation only after the culmination of the sale proceedings whereby the recovery proceedings against the petitioner, by sale of the secured interest, has become final. All that remains is the exercise of the power to take over actual physical possession in terms of Section 14 of the SARFAESI Act for which the police power of the State is provided. Therefore, the plea that there

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cannot be any recovery on the basis of the moratorium will not come to the aid of the petitioner.

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For the aforesaid reasons, this writ petition

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WPC1628/2008

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-:4:-

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fails. The same is accordingly dismissed.

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Thottathil B.Radhakrishnan, Judge.

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sl.

M.Chandrasekharan v. State of Kerala

Case brief

What is this about?

What did the court decide?

M.Chandrasekharan v. State of Kerala

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

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