Disposed

Ussan a v. the Authorised Officer

Kerala HC6 Aug 2016WP(C)/10243/2016

Case brief

AI extract

What is this about?

The Court disposed of two writ petitions challenging measures taken by the Bank under Sections 13(4) and 13(2) of the SARFAESI Act. Accepting the petitioners' offer to clear the debt, the Court stayed coercive proceedings pending payment.

What did the court decide?

Petition disposed. Coercive proceedings kept in abeyance. Petitioners directed to pay entire balance amount with accrued interest in two instalments within six months.

Ussan a Vs the Authorised Officer — Contract and Commercial Disputes | Kerala HC (2016)

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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 A.M.SHAFFIQUE

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SATURDAY, THE 6TH DAY OF AUGUST 2016/15TH SRAVANA, 1938

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WP(C).No. 10243 of 2016 (E)

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PETITIONER(S):

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1. USSAN A

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S/O. ALI,AGED 41 YEARS.

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2. THANUJA K.,

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W/O. USSAN, AGED 30 YEARS,

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BOTH ARE RESIDING AT CHIRUMBAKAVU HOUSE, ANAJUMOORTHI POST, ALATHUR, PALAKKAD - 678 682.

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BY ADVS.SRI.T.C.SURESH MENON

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SRI.P.S.APPU SRI.A.R.NIMOD

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RESPONDENT(S):

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1. THE AUTHORISED OFFICER,

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M/S. SUNDARAM BANP PARIBAS HOME FINANCE LIMITED, SUNDARAM TOWERS, 46,WHITES ROAD,CHENNAI - 600 014.

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2. THE BRANCH MANAGER

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M/S. SUNDARAM BNP, PARIBAS HOME FINANCE LIMITED, 1ST FLOOR, 15/513 (50), AKSHAYA FOUNDATION, STADIUM BY PASS ROAD, PALAKKAD - 678 001.

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R1 & R2 BY ADV. SRI.VARGHESE C.KURIAKOSE

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 06-08-2016 ALONG WITH 12840/2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C).No. 10243 of 2016 (E)

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APPENDIX

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PETITIONER(S)' EXHIBITS

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P1:-	TRUE COPY OF THE NOTICE DT. 01.10.2014.
P2:-	TRUE COPY OF THE JUDGMENT IN WPC NO. 31492/2014 ON THE FILE OF THIS HONOURABLE COURT DATED.
P3:-	TRUE COPY OF THE CERTIFICATE ISSUED BY THE 2ND RESPONDENT DT. 09.2.2015.
P4:-	TRUE COPY OF THE POSSESSION NOTICE ISSUED UNDER SECTION 13(4) OF THE ACT DT. 18.12.2015.
P5:-	TRUE COPY OF THE E-AUCTION NOTICE ISSUED PROPOSING TO CONDUCT THE AUCTION ON 06.2.2016 DT. 03.1.2016.
P6:-	TRUE COPY OF THIS POSSESSION NOTICE DT. 11.3.2016.

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RESPONDENT(S)' EXHIBITS :

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EXT.R1(A): COPY OF THE LOAN AGREEMENT DT 28/11/2012. EXT.R1(B): COPY OF DEMAND PROMISSORY NOTE DT 28/11/2012. EXT.R1(C): COPY OF LOAN AGREEMENT DT 28/1/2014. EXT.R1(D): COPY OF DEMAND NOTICE DT 1/12/2015 IN RELATION TO THE 2ND ACCOUNT. EXT.R1(E): COPY OF POSSESSION NOTICE DT 15/3/2016 IN RELATION TO THE 2ND ACCOUNT.

//TRUE COPY//

P.A.TO JUDGE

A.M.SHAFFIQUE, J.

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W.P (C) No. 10243 of 2016 &

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W.P (C) No. 12840 of 2016

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Dated this the 06^th day of August, 2016

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J U D G M E N T

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These two writ petitions have arisen out of measures

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taken by the respondent Bank against the petitioners in respect of two loans. The primary challenge in W.P. (C) No. 10243/2016 is with reference to the right of the respondent Bank to initiate proceedings under Section 13(4) of the SARFAESI Act, 2002. As far as W.P. (C) No.12840/2016 is concerned, the petitioners challenge the notice issued under Section 13(2) of the SARFAESI Act. However, it is stated that by virtue of an interim order dated 06.04.2016, petitioners had paid the overdue amounts. Learned counsel for the respondent Bank submits that the outstanding amount under the said loan account is Rs.4,71,783/-.

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As far as W.P. (C) No.10243/2016 is concerned, the

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petitioners have taken a contention that once the loan has been regularized on payment of the defaulted amounts as permitted by this Court in judgment dated 25.11.2014 in W.P. (C) No.31492/2014, without issuing a further notice under

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W.P (C) Nos. 10243 & 12840/16

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Section 13(2), the Bank was not entitled to take measures under Section 13(4).

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According to the petitioners, they remitted the overdue amount as per the said judgment even before the time stipulated and thereafter the Bank had standardized the accounts. Later there were few defaults and therefore the Bank ought to have issued a further notice under Section 13(2) and thereafter taken measures under Section 13(4).

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On the other hand, learned counsel appearing for the respondent Bank submitted that petitioners having not complied with all the terms and conditions of the judgment in W.P. (C) No. 31492/2014, in view of Clause (iii) of the operative portion of the judgment, the petitioners forfeited the benefit of the directions and therefore it was open for the respondent Bank to take measures under Section 13(4).

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Learned counsel for the petitioners, however, submits

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that the petitioners shall settle the entire liabilities with reference to both the loan accounts within a period of six months. It is stated that in respect of the loan which is the subject matter in W.P. (C) No.10243/2016, the loan was for Rs.2,00,00,000/- and presently the outstanding will come to

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W.P (C) Nos. 10243 & 12840/16

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more than Rs.79,00,000/.

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Taking into consideration the offer made by the learned counsel for the petitioners to settle the entire liability, I am of the view that these writ petitions can be disposed of without going into the merits of the contentions raised. Accordingly, these writ petitions are disposed of as under:

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(i) The petitioners shall pay the entire balance amount

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with accrued interest to the respondent Bank within a period of six months in two instalments.

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(ii) The first instalment (50%) shall be paid on or before 07.11.2016 and the balance 50% on or before 07.02.2017. Until such time, coercive proceedings against the petitioners under the Act shall be kept in abeyance.

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(iii) However, if any default is committed in respect of

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the above directions, it shall be open for the Bank to proceed further in accordance with law.

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A.M.SHAFFIQUE JUDGE

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DMR/-

Ussan a v. the Authorised Officer

Case brief

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Ussan a v. the Authorised Officer

Case brief

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