Disposed

Swarnan. T v. South Indian Bank

Kerala HC14 Oct 2016WP(C)/20717/2015

Case brief

AI extract

What is this about?

The Court held that it cannot interfere with contractual disputes regarding interest rates levied by a bank under the SARFAESI Act. It dismissed prayers for quashing calculations or ordering refunds, noting that such issues fall within the domain of civil courts or the Debts Recovery Tribunal.

What did the court decide?

The writ petition was closed without any grant of relief; the petitioner was directed to explore One Time Settlement.

Swarnan. T Vs South Indian Bank — Banking and Recovery | Kerala HC (2016)

¶1

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶2

PRESENT:

¶3

THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE

¶4

FRIDAY, THE 14TH DAY OF OCTOBER 2016/22ND ASWINA, 1938

¶5

WP(C).No. 20717 of 2015 (L)

¶6

NAME AND ADDRESS OF PETITIONER(S) :

¶7

SWARNAN.T,

¶8

S/O. THANKAPPAN, AGED 49 YEARS, “VELIPARAMBU”, NEERKUNNAM, VANDANAM (PO), ALAPPUZHA DISTRICT.

¶9

BY ADVS. SRI.P.V.VENUGOPAL

¶10

SRI.L.RAJESH NARAYAN

¶11

NAME AND ADDRESS OF RESPONDENT(S) :

¶12

1. SOUTH INDIAN BANK LTD., AMBALAPPUZHA BRANCH, REPRESENTED BY ITS BRANCH MANAGER, ANIRUDH MEMORIAL BUILDINGS, KUNCHERI JUNCTION, AMBALAPUZHA-688 561.

¶13

2. AUTHORIZED OFFICER (SARFESI), SOUTH INDIAN BANK LTD, S.I.B. HOUSE, T.B.ROAD, MISSION QUARTERS, THRISSUR-680 001.

¶14

BY ADV. SRI.K.K.JOHN, S.C

¶15

THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 14-10-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

¶16

Msd.

¶17

WP(C).No. 20717 of 2015 (L)

¶18

APPENDIX

¶19

PETITIONER(S)' EXHIBITS :

¶20

EXHIBIT P1: A TRUE COPY OF REGISTERED DEMAND NOTICE UNDER SECTION 13(2) NOTICE ISSUED BY THE 2ND RESPONDENT DATED 22.05.2015.

¶21

EXHIBIT P2: A TRUE COPY OF THE STATEMENT OF ACCOUNT PERTAINING TO 1ST PETITIONER INDICATING LOAN BEARING NO.0145654000000088 AS ON 11.04.2015.

¶22

EXHIBIT P3: A TRUE COPY OF INTIMATION ISSUED BY THE SENIOR MANAGER OF 1ST RESPONDENT DATED 13.05.2015 TO PETITIONER.

¶23

EXHIBIT P4: A TRUE COPY OF ORDER OF BANKING OMBUDSMAN IN PETITIONER'S COMPLAINT.

¶24

EXHIBIT P5: A TRUE COPY OF REPRESENTATION TO 2ND RESPONDENT DATED 30.06.2015.

¶25

RESPONDENT(S)' EXHIBITS :

¶26

EXHIBIT R2(A): COPY OF THE AGREEMENT EXECUTED BY THE PETITIONER AND HIS WIFE DATED 19.01.2005.

¶27

EXHIBIT R2(B): COPY OF THE ACKNOWLEDGEMENT OF DEBT EXECUTED BY THE PETITIONER AND HIS WIFE DATED 06.05.2014.

¶28

EXHIBIT R2(C): COPY OF THE REPLY ISSUED BY THE SECOND RESPONDENT TO THE PETITIONER DATED 06.07.2015 (WITH POSTAL ACKNOWLEDGEMENT).

//TRUE COPY//

P.A.TO JUDGE.

Msd.

A.M. SHAFFIQUE, J.

¶33

------------------------------------- W.P.(C) No. 20717 of 2015

¶34

Dated this the 14^th day of October, 2016

¶35

JUDGMENT

¶36

This writ petition has been filed seeking the following

¶37

reliefs:

¶38

“(i) To callforth all records leading to issuance of Exhibit P1 Notice issued by 2^nd respondent demanding Rs.7,57,411/- as balance outstanding and to quash issuing a writ of Certiorari all calculations by levying bench mark prime lending rate of 4.5% also thus refixing installment amount to Rs.15,320/-. By levying 13.5% p.a. overlooking Rs.8250/- the agreed rate, to the extent affecting rights of petitioner beyond interest rate beyond 8.50% pa and 2% pa penal interest for the defaulted period is highly illegal and arbitrary.

¶39

(ii) To issue a writ of mandamus or any appropriate order commanding the respondents 1 and 2 not to proceed under Section 13 (4) SARFAESI Act without making a transparent and fair demand as contemplated under SARFAESI Act.

¶40

(iii) To issue a writ of mandamus or any appropriate order so as to expedite the proceedings so as to declare that the petitioner is entitled to a refund on all payments in excess beyond agreed rate @ 8.50%

¶41

W.P.(C) No. 20717 of 2015

¶42

-2-

¶43

and 2% penal interest for the defaulted period.”

¶44

As far as the first relief is concerned, the question is with reference to levy of particular rate of interest which I do not think that this Court should enter into such a controversy, since the matter relates to the contract between the parties. It is always open for the petitioner to challenge the legality of any excess interest being charged by the respondent Bank by approaching the Civil Court or the appropriate forum. This Court cannot sit in judgment over contractual disputes between the parties.

¶45

As far as the second relief is concerned, insofar as no infirmity is pointed out in relation to any measure taken under Section 13 (4), I do not think that this Court should interfere with such a procedure adopted by the Bank. That apart, an alternative remedy is available to the petitioner to challenge any of the measures taken under Section 13 (4) by approaching the Debts Recovery Tribunal under Section 17 of the SARFAESI Act.

¶46

W.P.(C) No. 20717 of 2015

¶47

-3-

¶48

In regard to the third relief as well, no such

¶49

declaration can be granted which will virtually amount to interfering with the contractual aspects involved in the matter. If the petitioner has a case that the Bank is charging more

¶50

amount than what is actually payable, he has a remedy available under law. At any rate writ petition under Article 226 cannot be entertained to adjudicate on such disputed questions of fact. Hence, reserving right of the petitioner to take appropriate declaration before a competent authority/court, this writ petition is closed.

¶51

The disposal of this writ petition shall not preclude the petitioner from approaching the Bank and arriving at any form of One Time Settlement. In the event of any such application being submitted, the Bank shall consider the same in accordance with the prescribed procedure.

¶52

Sd/A.M. SHAFFIQUE JUDGE

¶53

Scl/14.10.2016

Swarnan. T v. South Indian Bank

Case brief

What is this about?

What did the court decide?

Swarnan. T v. South Indian Bank

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

Similar cases

Sudheer Vs the University of Calicut

Ismail Ebrahim Kutty Vs the Commercial Tax Officer

Mohanan Pillai K Vs the Additional District Magistrate, Kollam

Hamsa Vs the Trichur Urban Co-Op. Bank Ltd.

Engineers Training Centre Vs Univeristy Grants Commission

Drishya Krishnan Vs Kerala University of Health Sciences