Partly allowed

Suresh Kumar v.K., v. the Thiruvananthapuram District Co-Operative Bank Ltd.

Kerala HC22 Mar 2019WP(C)/7093/2019

Case brief

AI extract

What is this about?

The Court dismissed the writ petition seeking to restrain SARFAESI proceedings against a guarantor. It observed that alternative remedies preclude writ jurisdiction regarding such measures. However, to avoid immediate distress sale, the Court allowed the guarantor to pay the overdue amount via equal monthly instalments to regularize the account.

What did the court decide?

Petitioner directed to pay Rs.7,22,131/ plus charges and interest in 12 equal monthly instalments starting 25.04.2019 to regularize the account. Liberty granted to proceed against the third respondent

Suresh Kumar v.K., Vs the Thiruvananthapuram District… — Banking and Recovery | 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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FRIDAY, THE 22ND DAY OF MARCH 2019 / 1ST CHAITHRA, 1941

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WP(C).No. 7093 of 2019

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PETITIONER:

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SURESH KUMAR V.K., AGED 51 YEARS S/O.KARUNAKARAN NAIR, KARIYARATTHALAKKELMELE VEEDU, T C.50/1664, THIRUMALA, THIRUVANANTHAPURAM.

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BY ADV. SRI.S.SACHITHANANDA PAI

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RESPONDENTS:

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1 THE THIRUVANANTHAPURAM DISTRICT CO-OPERATIVE BANK LTD., CHALAI BRANCH, REP. BY ITS MANAGER, THIRUVANANTHAPURAM, PIN-695036.

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2 THE AUTHORISED OFFICER, THE THIRUVANANTHAPURAM DISTRICT CO-OPERATIVE BANK LTD., FORT.P.O., THIRUVANANTHAPURAM, PIN-695023.

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3 PUSHPA VIJAYAKUMAR, AGED 50 YEARS, SREERANJINI, DEVAPALAN NAGAR, TC.127/A, PEROORKADA.P.O., THIRUVANANTHAPURAM-695005.

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BY SRI.THOMAS ABRAHAM SC

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 22.03.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

WPC 7093/19

JUDGMENT

The petitioner says that he is a guarantor of the loan availed of by the third respondent from the first respondent Bank. He says that since the third respondent has now defaulted the payment of the loan, the Bank is taking steps under the Securitisation and Reconstruction of Financial Assets and Enforcement of Securities Interest Act ('the SARFAESI Act' for brevity) against the property owned by him, which was mortgaged in favour of the Bank while the third respondent had availed the loan. He, therefore, prays that the respondent Bank be directed not to take any further against his property but to proceed only as against the third respondent.

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Even when I hear the learned counsel for the petitioner as afore, the fact remains that it is now well settled in law by the Hon'ble Supreme Court in Union Bank of India v. Satyawati Tondon ((2010) 8 SCC 110) and in Authorised Officer, State Bank of Travancore and Another v. Mathew K.C. (2018 (1) KLT 784) that this Court will obtain no jurisdiction to entertain a challenge to the measures taken by the Bank under the SARFEASI Act on account of the fact that the petitioner has efficacious alternative remedies.

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WPC 7093/19

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When I disclosed my mind as afore at the Bar, the learned counsel for the petitioner prayed that the respondent Bank be directed to allow the petitioner to pay off the overdue in the account in easy instalments, so that the distress sale of his property can be avoided.

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The learned Standing Counsel for the respondent Bank submits that overdue in the account as on 28.02.2019 is Rs.7,22,131/and that the petitioner can be allowed to pay off this amount, so as to regularise the loan account in twelve equal monthly instalments starting from 16.04.2019.

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The learned counsel for the petitioner submitted that the petitioner will accept this offer but prayed that his right to proceed against the third respondent be reserved.

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In the afore circumstances and taking note of the specific submissions made by the respondent Bank, I order this writ petition and direct the petitioner to pay Rs.7,22,131/-, which is stated to be the total outstanding as on 28.02.2019, along with all applicable charges and interest, in twelve equal monthly instalments commencing from 25.04.2019, in which event, the loan account will stand regularised.

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WPC 7093/19

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Needless to say, if the petitioner commits default in payment of any of the afore instalments, the Bank will be at liberty to take action under the SARFAESI Act without any further orders from this Court.

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Acceding to the request of the learned counsel for the petitioner, I also leave full liberty to the petitioner to proceed against the third respondent in terms of law to recover the amounts to be paid by him as per the directions of this judgment.

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Sd/Devan Ramachandran, Judge

tkv

WPC 7093/19

APPENDIX

PETITIONER'S EXHIBITS:

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EXHIBIT P1	TRUE COPY 05.02.2009	OF THE .	DEALERSHIP AGREEMENT DATED
EXHIBIT P2	TRUE COPY PANCHAYATH	OF DATED	THE LICENSE ISSUED BY 16.05.15.
EXHIBIT P3	TRUE COPY	OF TH	E POSSESSION NOTICE DATED
	02.11.2018	OF THE	RESPONDENT.

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/true copy/

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P.S. TO JUDGE

Suresh Kumar v.K., v. the Thiruvananthapuram District Co-Operative Bank Ltd.

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Suresh Kumar v.K., v. the Thiruvananthapuram District Co-Operative Bank Ltd.

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