Disposed

Baiju.P., v. Authorized Officer

Kerala HC18 Mar 2019WP(C)/5535/2019

Case brief

AI extract

What is this about?

In this writ petition challenging SARFAESI Act proceedings, the High Court acknowledged jurisdictional bars regarding merits but granted leniency to petitioners facing financial constraints. The court empowered them to pay a lump sum followed by installments to regularize their loan account.

What did the court decide?

Petitioners permitted to pay Rs. 75,000/- by 28.03.2019 and balance in eight installments from 29.04.2019 with regular EMIs to regularize loan account.

Baiju.P., Vs Authorized Officer — Contract and Commercial Disputes | Kerala HC (2019)

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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 DEVAN RAMACHANDRAN

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MONDAY ,THE 18TH DAY OF MARCH 2019 / 27TH PHALGUNA, 1940

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WP(C).No. 5535 of 2019

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PETITIONERS:

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1 BAIJU.P., AGED 48 YEARS S/O.BALAKRISHNAN, RESIDING AT PULIYULLATHIL HOUSE, MAKKADA P.O., KAKKODY, KOZHIKODE DISTRICT-673611.

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2 SHYJU P., AGED 43 YEARS S/O. BALAKRISHNAN, RESIDING AT PULIYULLATHIL HOUSE, MAKKADA P.O., KAKKODY, KOZHIKODE DISTRICT-673611.

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BY ADVS. SRI.C.SIVADAS SRI.VICTOR ANTONY NOONE SRI.V.K.PRASAD

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RESPONDENTS:

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1 AUTHORIZED OFFICER, KOZHIKODE DISTRICT CO-OPERATIVE BANK LIMITED NO.F-1635, HEAD OFFICE (RECOVERY DEPARTMENT), KALLAI ROAD, CHALAPURAM P.O., KOZHIKODE-673002.

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2 KOZHIKODE DISTRICT CO-OPERATIVE BANK LTD., KAKKODY BRANCH, KAKKODY, KOZHIKODE DISTRICT - 673 611, REP.BY ITS BRANCH MANAGER.

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SRI.P.C.SASIDHARAN-SC

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 18.03.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C).No. 5535 of 2019

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JUDGMENT

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Through this writ petition, the petitioners call into question certain proceedings initiated and being pursued by the respondent Bank under the provisions of the Securitisation and Reconstruction of Financial Assets and Enforcement of Securities Interest Act ('the SARFAESI Act' for brevity).

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I have heard the learned counsel for the petitioners and the learned counsel for the respondent Bank.

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As I proceed to consider the reliefs prayed for by the petitioners herein, I am conscious that I am jurisdictionally proscribed from entering into any enquiry or consideration of the legality or otherwise of the orders impugned in this writ petition on account of the imperative statutory provisions and the binding judicial pronouncements, especially that of the Hon'ble Supreme Court in Union Bank of India v. Satyawati Tondon ((2010) 8 SCC 110) and followed recently in Authorised Officer, SBT v. Mathew (ILR 2018 (1) Ker. 479). I, therefore, cannot and do not propose to consider any of the legal contentions raised by the petitioners on its merits.

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However, obviously being aware of this, the learned counsel appearing for the petitioners has prayed that notwithstanding the limitations of jurisdiction as

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aforementioned, the petitioners may be granted some leniency or latitude in order to enable them to pay off the overdue amounts in installments.

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I, therefore, enquired with the learned counsel for the Bank as to whether the request on the part of the petitioners can be allowed, especially on account of the fact that the Banks are only interested in recovering and not in maintaining and keep pending litigations and legal proceedings against such recovery. The learned counsel has fairly submitted that the Bank is concerned about recovery at the earliest and that if the petitioners pay off the dues quickly, it would be to their interest also.

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In view of the fact that the proceedings initiated by the Bank would consume time to culminate in total recovery and taking into account the financial constraints and burden that have been alleged and pleaded by the petitioners, I am inclined to dispose of this writ petition allowing them an opportunity to pay off the overdue amounts demanded by the Bank.

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The learned counsel for the Bank at this time submits that the petitioners can be allowed to pay off the overdue amounts, which is stated to be Rs.2,86,686/- as on 31.01.2019, if they remit Rs.75,000/- by 28.03.2019 and the balance in not

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WP(C).No. 5535 of 2019

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more than eight instalments commencing from 29.04.2019 and that the account can thus be regularised by the Bank.

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The learned counsel for the petitioners says that the petitioner is agreeable to the above offer made by the Bank and therefore that the writ petition may be ordered granting permission to the petitioners to pay off the amount in the manner as afore.

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In such circumstances, I direct the petitioners to pay an amount of Rs.75,000/- by 28.03.2019 and the balance, along with applicable charges and interest, in not more than eight instalments commencing from 29.04.2019. They shall also, in addition to this, pay the regular EMIs without fail. If such payment is made by the petitioners, their loan account would stand regularised and they would then be at liberty to service the account as per the terms of the original loan sanction. It goes without saying that if there is any default in making the payment as directed above, the benefit granted under this judgment would stand vacated and the Bank will be at liberty to recover the entire liability from the petitioners by continuing with the proceedings from the stage it is on this date.

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I make it clear that the directions in this judgment are peremptory in nature and that the petitioners will have to

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comply with the same meticulously. I caution the petitioners that no further requests for extension or modification of this judgment, save in exceptional circumstances, will be permitted and that if the petitioners fail to comply with the directions herein, they will lose the benefit of this judgment.

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The writ petition is ordered accordingly.

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Sd/- DEVAN RAMACHANDRAN

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JUDGE

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stu

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WP(C).No. 5535 of 2019

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