Allowed

Sunilkumar.P.G v. Arbitration &Execution Iinspector-Ii

Kerala HC15 Dec 2017WP(C)/37296/2017

Case brief

AI extract

What is this about?

Petitioner challenged an auction notice for his property due to a loan default. The Court directed repayment of dues in ten monthly instalments. Upon compliance, recovery proceedings are to remain in abeyance; default permits resumption of auction steps.

What did the court decide?

Petitioner allowed to pay dues in ten equal monthly instalments; recovery proceedings kept in abeyance if instalments remitted on time without default.

Sunilkumar.P.G Vs Arbitration &Execution… — Contract and Commercial Disputes | Kerala HC (2017)

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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 ANIL K.NARENDRAN

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FRIDAY, THE 15TH DAY OF DECEMBER 2017/24TH AGRAHAYANA, 1939

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WP(C).No. 37296 of 2017 (J)

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PETITIONER:

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SUNILKUMAR P.G., VALUPARAMBIL HOUSE, MALAKUNNAM P.O., CHANGANASSERY.

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BY ADVS.SRI.T.P.PRADEEP SRI.P.K.SATHEES KUMAR

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RESPONDENTS:

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1. ARBITRATION & EXECUTION INSPECTOR-II, ASSISTANT REGISTRAR (J) OFFICE, CHANGANASSERY, PIN - 686 101.

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2. ITHITHANAM SERVICE CO-OPERATIVE BANK LTD.NO. 476, REPRESENTED BY ITS SECRETARY, MALAKUNNAM P.O., ITHITHANAM, PIN - 686 535.

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3. THE SECRETARY, ITHITHANAM SERVICE CO-OPERATIVE BANK LTD.NO. 476, MALAKUNNAM P.O., ITHITHANAM, PIN - 686 535.

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R1 BY GOVERNMENT PLEADER SMT.MABLE C. KURIAN R2 & R3 BY ADVS. SRI.B.KRISHNAN

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SRI.R.PARTHASARATHY

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 15-12-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C).No. 37296 of 2017 (J)

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APPENDIX

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PETITIONER(S)' EXHIBIT

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EXHIBIT P1 TRUE COPY OF THE SALE NOTICE DATED 09.11.2017 ISSUED BY THE 1ST RESPONDENT

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RESPONDENT(S)' EXHIBITS

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----------------------EXHIBIT R2(A) TRUE COPY OF THE LOAN AGREEMENT DATED 28.8.2014 EXHIBIT R2(B) TRUE COPY OF THE AWARD DATED 7.10.2016 EXHIBIT R2(C) TRUE COPY OF THE POSTAL ACKNOWLEDGEMENT CARD DATED 5.4.2017 EXHIBIT R2(D) TRUE COPY OF THE NOTICE DATED 12.7.2017 EXHIBIT R2(E) TRUE COPY OF THE DEMAND NOTICE DATED 17.10.2017

TRUE COPY

P.S. TO JUDGE

ANIL K. NARENDRAN, J.

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W.P.(C) No.37296 of 2017

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Dated this the 15^th day of December, 2017

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JUDGMENT

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The petitioner, who availed a loan for 8,50,000/-from the₹ second respondent Bank in the year 2014, is before this Court in this writ petition filed under Article 226 of the Constitution of India, seeking an order to set aside Ext.P1 auction notice dated 09.11.2017 issued by the Sale Officer of the second respondent Bank. The petitioner has also sought for a writ of mandamus commanding the respondents to regularise the loan account and allow him to repay the arrears in instalments.

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The reliefs sought for in this writ petition are opposed by respondents 2 and 3 by filing a counter affidavit, wherein it has been stated that after availing loan on 28.08.2014, the petitioner has remitted only a sum of 50,000/- on 08.04.2016₹ which has been adjusted towards interest. In A.R.C. No.319 of 2016 filed by the Bank, the Arbitrator passed Ext.R2(b) award dated 07.10.2016 and in order to execute the said award, the Bank initiated recovery proceedings as per Ext.R2(e) demand

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W.P.(C) No.37296 of 2017 :-2-:

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notice. As per the counter affidavit filed by the second respondent Bank, the total amount due to the Bank as on 18.12.2017 comes to 12,88,873/-.₹

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Heard the learned counsel for the petitioner, the learned Government Pleader for the first respondent and also the learned Standing Counsel for respondents 2 and 3.

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Though the petitioner availed a loan for ₹8,50,000/- in the year 2014, he has repaid only a sum of ₹50,000/- as discernible from the counter affidavit filed by respondents 2 and 3. Now the sale of the said property having an extent of 7 cents with a residential building is scheduled to be held on 18.12.2017, in terms of Ext.P1 notice. As per the counter affidavit filed by respondents 2 and 3, it is not possible to sell a portion of the property considering the fact that the residential building is situated in the middle of the property. Further, as per the latest valuation, the property is not worth more than 18 lakhs₹ .

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The learned counsel for the petitioner seeks a reasonable opportunity to enable the petitioner to pay off the entire dues covered by Ext.P1 auction notice in monthly instalments.

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W.P.(C) No.37296 of 2017 :-3-:

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Having considered the rival submissions, this Court finds that an opportunity can be afforded to the petitioner to pay off the entire dues covered by Ext.P1 auction notice in monthly instalments.

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In such circumstances, this writ petition is disposed of with the following directions:

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(i) The petitioner shall pay off the entire amount due in terms of Ext.P1 auction notice, together with future interest, in 10 equal monthly instalments commencing from 29.12.2017 and the subsequent instalments payable on or before the 29^th day of the succeeding months.

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(ii) If the petitioner is remitting the aforesaid instalments in time without any default, all recovery proceedings pursuant to Ext.P1 auction notice shall be kept in abeyance.

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(iii) However, in case of any default committed by the petitioner in remitting any one of the aforesaid instalments, it would be open to respondents 2 and 3 to proceed further with the recovery steps pursuant to Ext.P1.

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Sd/-

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ANIL K. NARENDRAN JUDGE

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bpr

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//TRUE COPY//

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P.A. TO JUDGE

Sunilkumar.P.G v. Arbitration &Execution Iinspector-Ii

Case brief

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Sunilkumar.P.G v. Arbitration &Execution Iinspector-Ii

Case brief

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