Dismissed

Dinsil Lonappan v. Canara Bank and Another

Kerala HC18 Aug 2011WP(C)/21337/2011

Case brief

AI extract

What is this about?

The petitioner sought to set aside SARFAESI Act sale notices issued under Section 13(4) regarding a loan account. The court dismissed the writ petition, noting that default was uncontroverted and the petitioner failed to show compliance with earlier regularization directions.

What did the court decide?

Sale notices Exts.P1 and P2 are maintained; writ petition dismissed without prejudice to statutory remedy under Section 17(1) of the SARFAESI Act.

Dinsil Lonappan Vs Canara Bank and Another — Cheque Dishonour | Kerala HC (2011)

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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 C.K.ABDUL REHIM THURSDAY, THE 18TH AUGUST 2011 / 27TH SRAVANA 1933

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WP(C).No. 21337 of 2011(N)

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

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PETITIONER(S):

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

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DINSIL LONAPPAN (50), S/O.LONAPPAN, ELAYACHATTIL HOUSE, NELLIKUNNU P.O.

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BY ADV. SRI.K.V.SADANANDA PRABHU

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RESPONDENT(S):

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

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1. CANARA BANK, KURIACHIRA SME, KURIACHIRA P.O., THRISSUR-680 006.

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2. THE DEPUTY TAHSILDAR, RR, THRISSUR-680 020.

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R1 BY ADV. SRI. PAULY MATHEW MURICKEN, SC, CANARA BANK

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 18/08/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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Kss

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WPC.NO.21337/2011 N

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APPENDIX

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PETITIONER'S EXHIBITS:

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P1: COVERING LETTER TO SALE NOTICE CR 244 DTD.22/07/2011 ISSUED BY THE RESPONDENT TO THE PETITIONER.

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P2: SALE NOTICE DTDX. 22/07/2011SENT ALONG WITH EXT.P1 BY THE RESPONDENT TO THE PETITIONER.

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RESPONDENT'S EXHIBITS: N I L

/TRUE COPY/

P.S.TO JUDGE

Kss

C.K.ABDUL REHIM,J.

------------------------------WP(C).NO. 21337 of 2011

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Dated this the 18th day of August, 2011

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JUDGMENT

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In this writ petition the petitioner is challenging Exts.P1 and

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P2 notices. Ext.P1 is a notice issued under the provisions of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act (SARFAESI Act). Through Ext.P1 the petitioner was intimated that the immovable property, which is the secured asset, is proclaimed for sale pursuant to steps already taken under section 13(4). Ext.P2 is the sale notice published, scheduling the date of auction as 29.8.11 at 3.30 p.m.

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It is stated that the petitioner had approached this court on an earlier occasion by filing WP(C).No.7700/11. The said writ petition was filed challenging the steps initiated under the revenue recovery proceedings and the SARFAESI Act, for realising amounts due under the very same loan account. This court disposed of the said writ petition on 24.3.2011. This court permitted regularisation of the loan account, directing the

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WP(C) .21337/2011 2

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petitioner to remit the amounts in default, on or before 15.4.2011. According to the petitioner, certified copy of that judgment was not obtained by him before the date stipulated, or at the time when this writ petition was filed. Under such circumstances the petitioner is challenging Exts.P1 and P2 notices in this writ petition.

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When the matter came up for admission before another learned judge of this court, it was opined that in view of the dispute raised as to “what is the judgment in WP(C).7700/11”, it is only proper to hear the writ petition by the very same judge who passed the judgment in WP(C).7700/11. Accordingly the writ petition is posted before me on today.

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Registry had placed copy of the judgment in WP(C). 7700/11, for my perusal. It is evident that the said judgment was pronounced in the open court, in the presence of the very same counsel, who was appearing for the petitioner in that case also. After noticing the instalment facility granted by the State Government with respect to the revenue recovery proceedings, this court observed that, it was not justified on the part of the respondent Bank to invoke proceedings under the provisions of

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WP(C) .21337/2011 3

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the SARFAESI Act, because there was no allegation of default in compliance of the order passed by the Government. But learned counsel appearing for the respondent Bank in that case submitted that, the steps under the SARFAESI Act was initiated only because the petitioner had defaulted payment of monthly instalments due in the loan account, in accordance with the original schedule of repayment. It is noticed that submissionss

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of the counsel appearing for the 1^st respondent was recorded, which is to the effect that the defaulted (overdue) amount is around Rs.1.65 lakhs. The concession expressed on behalf of the respondent Bank to the effect that, the petitioner can be permitted to continue payment of future monthly instalments on clearing payment of the amounts in default, was also recorded. It is pertinent to note that the petitioner had not raised any dispute with respect to the amounts in default or with respect to liability for payment of such amount. On the basis of submissions recorded as stated above, this court had shown indulgence in directing the respondent Bank to keep in abeyance all further proceedings initiated under the SARFAESI Act, provided the petitioner remits the amounts remaining overdue,

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WP(C) .21337/2011 4

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on or before 15.4.2011. However, in the operative portion of that judgment, this court clarified that, the remaining overdue amounts means, the defaulted monthly instalments including interest and expenses if any due. The default was directed to be cleared payment on or before 15.4.2011, along with payment of regular monthly instalments due for the month of April,2011.

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Learned counsel for the petitioner vehemently contended that, in view of the direction issued by this court in WP(C). No.7700/2011 the steps now taken by the respondent Bank under Exts.P1 and P2 are not sustainable. Contention is that the respondent Bank had failed to intimate that there is any default. It is also contended that the Bank had failed to mention about the default committed, nor any non compliance of the directions contained in the judgment in WP(C).7700/2011 is alleged, in the notices issued. The petitioner is also disputing that there is default in payment of any instalments.

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I am not at all impressed by the contentions now raised. Nor I find any valid grounds to challenge Exts.P1 and P2. As observed above, while disposing the earlier writ petition, there was no dispute raised from the side of the petitioner regarding the existing default in repayment. In the present writ petition the petitioner has not

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WP(C) .21337/2011 5

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produced any scrap of paper to show that any payment is made after the earlier judgment, in compliance with the directions contained therein. Learned counsel for the petitioner is now making attempts to give interpretation to the wordings in the judgment in WP(C). No.7700/2011, in order to content that this court directed payment only if there is default . But it is explicitly clear that this court has recorded the statement of the standing counsel that there is default to the tune of Rs.1.65 lakhs, which remained uncontroverted.

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Therefore the challenge against Exts.P1 and P2 cannot be entertained. However, I observe that if there is any dispute regarding correctness of the amounts under demand or regarding sustainability of the actions initiated under the provisions of the SARFAESI Act, the petitioner will be at liberty to resort to the effective remedy, which is alternative in nature, as provided under section 17(1) of the SARFAESI Act.

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Therefore the writ petition is dismissed without prejudice to the right of the petitioner to invoke statutory remedy, if any available under law.

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C.K.ABDUL REHIM,JUDGE

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pmn/

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WP(C) .21337/2011 6

Dinsil Lonappan v. Canara Bank and Another

Case brief

What is this about?

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Dinsil Lonappan v. Canara Bank and Another

Case brief

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