Dismissed

Ummer Nechikkadan v. Nilambur Co-Operative Urban Bank Ltd.

Kerala HC20 Feb 2020WA/312/2020

Case brief

AI extract

What is this about?

In this writ appeal, the High Court dismissed a challenge against the dismissal of a writ petition filed by a loan defaulting appellant against Nilambur Co-operative Urban Bank. The bank had sought possession of secured assets under the SARFAESI Act, which the lower court had stayed. The appellate court held that the High Court lacked jurisdiction to intervene in SARFAESI proceedings where statuto

What did the court decide?

The writ appeal was dismissed, upholding the lower court's order declining to grant writ of mandamus against the bank's recovery proceedings.

Ummer Nechikkadan Vs Nilambur Co-Operative Urban Bank Ltd. — Banking and Recovery | Kerala HC (2020)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR

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THE HONOURABLE MR. JUSTICE SHAJI P.CHALY

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THURSDAY, THE 20TH DAY OF FEBRUARY 2020 / 1ST PHALGUNA, 1941

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WA.No.312 OF 2020

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AGAINST THE JUDGMENT IN WP(C) 32976/2019(V) OF HIGH COURT OF KERALA

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APPELLANT/PETITIONER IN W.P.(C):

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UMMER NECHIKKADAN

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AGED 48 YEARS

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S/O.MUHAMMED, NECHIKKADAN HOUSE, KOOLIMUNDA, EDAKKARA.P.O, MALAPPURAM DISTRICT, PIN-679331

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BY ADVS.

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SRI.R.SURAJ KUMAR SMT.A.B.SHYMOL SMT.N.G.SINDHU

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RESPONDENTS/RESPONDENTS IN W.P.(C):

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1 NILAMBUR CO-OPERATIVE URBAN BANK LTD. NO.1043, REPRESENTED BY ITS MANAGING DIRECTOR, HEAD OFFICE, NILAMBUR.P.O, MALAPPURAM DISTRICT, PIN-679329

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2 THE AUTHORIZED OFFICER

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THE ASSISTANT GENERAL MANAGER, NILAMBUR CO-OPERATIVE URBAN BANK, LTD NO.1043, HEAD OFFICE, NILAMBUR.P.O, MALAPPURAM DISTRICT, PIN-679329

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3 THE BRANCH MANAGER

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NILAMBUR CO-OPERATIVE URBAN BANK LTD NO.1043, HEAD OFFICE, NILAMBUR.P.O, MALAPPURAM DISTRICT, PIN-679332

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SRI.DEVAPRASANTH.P.J, STANDING COUNSEL FOR RESPONDENTS

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THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 20.02.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

WA.No.312 OF 2020

C.R.

JUDGMENT

S. MANIKUMAR, CJ.

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Challenge in this writ appeal is against the order passed in W.P.(C) No. 32976 of 2019 dated 21.1.2020, by which the writ court declined to grant a writ of mandamus to the bank to permit the appellant to repay the loan in considerable instalments and to regularise the loan amount by selling the secured assets within a period of six months, as prayed for. The impugned judgment reads thus;

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Sri.P.J. Devaprasanth, learned Standing Counsel for the respondents (Nilambur Co-operative Urban Bank Ltd.), submits that earlier the co-obligant in the very same loan transaction has approached this Court which culminated Ext.P3 judgment dated 10.10.2017 in W.P.(C).No.32172/2017 for cash credit facility, at this point of time the total dues was around Rs.29.4 lakhs and this Court had liberally granted installments facility to the petitioner their, who never even care to be comply the same except making a partly payment of hardly around Rs.1,54,000/- and that as on now, the total outstanding dues to be cleared by the petitioner for closing of the account in relation with the instant cash credit facility com around Rs.54,77,270/- and that the respondent Bank is prepared to consider the pleas of the petitioner only if he pays an amount of rupees not less than 25 lakhs on or before 31.01.2020.

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4.In which case, the Bank would permit him to clear the balance amount thereto in 4 equal monthly installments thereafter. From the tone and tenor of the submissions made by the petitioner, it appears that the petitioner may not be able to meet with the said

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dead line and requisite conditions. It is for the petitioner to consider whether he should accept the said offer or otherwise, if the said payment is not made by the petitioner within the said time deadline of 31.01.2020, it is open to the respondent Bank to proceed further with the impugned proceedings in accordance with law.

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With these observations and directions, the above Writ

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Petition (Civil) stands finally disposed of.”

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The impugned judgment is assailed on the grounds is relevant, which read thus:

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“A. It is submitted with respect that the judgment of learned single judge, to the extent the same is challenged herein is against law.

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B. It is submitted with respect that the directions of the learned single judge based on the submissions of the standing counsel for the bank that if the petitioner won't pay an amount of Rs. 25,00,000/- 31.01.2020, it is open to the respondent bank to proceed further accordance with law, is against law and natural justice as the said condition is onerous and the same could not practically be complied by the petitioner.

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C. It is submitted with respect that the learned single judge ought to have taken into consideration that the petitioner has approached this Hon'ble court for the first time. The petitioner have been repeatedly representing to the 2nd respondent pointing out that the amount claimed are not correct and exorbitant interest rates are being charged. As the petitioner had expressed his intention to clear all the amount which is outstanding, the learned single judge ought to have permitted the petitioner to repay the loan amount in more flexible instalments.

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D. It is submitted with respect that the learned single judge ought to have taken into consideration that the remittances made by the said Usman have not been adverted by respondent No. 2 while proceeding against the property mortgaged.

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E. The learned single judge ought to have taken into consideration that the petitioner and his family has no shelter of their own. Had the bank been much more lenient, the petitioner would have taken all efforts to repay the loan.

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F. It is submitted with respect that the learned single judge ought to have taken into consideration that the bank has already taken physical possession of all the secured assets except the residential building of the petitioner. Now the bank is about to take the physical possession of the residential building as well. Even by selling the portion of the secured assets, the liability towards the Bank could be discharged.

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G. It is submitted with respect that this Hon'ble court may be pleased to permit the petitioner to repay the loan amount in six equal monthly instalments or in the alternative, to permit the petitioner to avail the benefit of One Time settlement scheme of the bank.”

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Based on the above grounds, Mr.R.Suraj Kumar, learned counsel for appellant, made submissions. That apart, it is submitted that, as on today the total amount payable to the bank is Rs.54,77,270/- and that by the end

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of March, the entire liability would be discharged. According to him, bank has already taken possession of non-residential premises and that, bank is proceeding to take possession of the residential premises, mortgaged as collateral security by the borrower/appellant.

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Per contra, Mr.Devaprasanth, learned standing counsel appearing for the bank, submitted that when proceedings were initiated, co-borrower filed W.P.(C) No.32172 of 2017 and after hearing the learned counsel for parties, a learned Single Judge of this Court granted 10 installments to make the payment, which judgment has not been complied with. He further

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submitted that, appellant stood as a guarantor for cash credit facility availed

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on 8.10.2015 for one year and that since 8.10.2016, it has accrued as a matured loan.

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Learned counsel for the respondent further submitted that the orders under section 4 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002, has been obtained to take possession of the residential premises and when attempt was made to take possession, there was obstruction. According to him, there is no bona fides in the action of the appellant, but the intention is to protract the proceedings.

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Heard the learned counsel for parties and perused the material on record.

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It could be seen that, loan was availed on 8.2.2015 and not repaid the amount, in time. Hence bank has initiated proceedings under the SARFAESI Act, 2002, which has been challenged in W.P.(C) No.32172/2017. After hearing the learned counsel for parties, a learned Single Judge of this Court in W.P.(C) No.32172/2017 dated 10^th October, 2017, ordered thus:

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On a consideration of the facts and circumstances of the case and the submissions made across the bar, I note that the sole prayer of the petitioner is to permit him to remit the balance amounts outstanding to the bank in easy installments. Taking into account the plea of financial hardship raised by the petitioner. I dispose the writ petition with the following directions-

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i) The total outstanding amount, in respect of the loan availed by the petitioner is stated to be Rs.39,40,729/-. Accordingly, if the petitioner remits the aforesaid amount of Rs.39,40,729/- together with accrued interest in ten equal and successive monthly installments commencing from 23.10.2017, then the recovery steps initiated against him by the respondent bank shall be kept in abeyance.

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(ii) It is made clear that if the petitioner commits a default in respect of any of the installments, he will lose the benefit of this judgment and the respondent bank will be free to continue the recovery proceedings against him from the stage at which they presently stand.

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(iii)The respondent bank shall furnish the petitioner with an up-todate statement, of the dues position together with interest, within 10 days from today, so as to enable the petitioner to discharge his liability in accordance with the directions in this judgment.”

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Though the learned counsel for appellant, sought for time upto 31/3/2020 for one time settlement of the loan amount, bank has contended that even the directions issued in W.P.(C) No.32172/2017 has not been complied with. That apart, bank has already been obtained an order under section 14 of the SARFAESI Act, 2002 to take physical possession of the property mortgaged with the bank and the effort to execute the order is stated to have been obstructed.

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Hon'ble Supreme Court has held that the writ petitions should not be entertained against the proceedings taken under SARFAESI Act, 2002, on the ground that, there is an alternative efficacious remedy provided

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under SARFAESI Act, 2002 and having regard to the order under section 4 of the SARFAESI Act, 2002 already issued by the learned Chief Judicial Magistrate, this Court is not inclined to accept the contentions of the appellant and if it is accepted, it would be contrary to the judgment of the Hon'ble Supreme Court, besides, collaterally interfering with the order of the learned Chief Judicial Magistrate, granting permission to take physical possession. Reliance can be made on a decision of the Hon'ble Supreme Court in Authorised Officer, State Bank of Travancore and another

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v. Mathew K.C. reported in (2018) 3 SCC 85, wherein it is held thus:

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“15. It is the solemn duty of the Court to apply the correct law without waiting for an objection to be raised by a party, especially when the law stands well settled. Any departure, if permissible, has to be for reasons discussed, of the case falling under a defined exception, duly discussed after noticing the relevant law. In financial matters grant of ex-parte interim orders can have a deleterious effect and it is not sufficient to say that the aggrieved has the remedy to move for vacating the interim order. Loans by financial institutions are granted from public money generated at the tax payers expense. Such loan does not become the property of the person taking the loan, but retains its character of public money given in a fiduciary capacity as entrustment by the public. Timely repayment also ensures liquidity to facilitate loan to another in need, by circulation of the money and cannot be permitted to be blocked by frivolous litigation by those who can afford the luxury of the same. The caution required, as expressed in Satyawati Tandon (supra), has also not been kept in mind before passing the impugned interim order:-

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“46. It must be remembered that stay of an action initiated by

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the State and/or its agencies/instrumentalities for recovery of taxes, cess, fees, etc. seriously impedes execution of projects of public importance and disables them from discharging their constitutional and legal obligations towards the citizens. In cases relating to recovery of the dues of banks, financial institutions and secured creditors, stay granted by W.A.No.1958 OF 2019 : 6 : the High Court would have serious adverse impact on the financial health of such bodies/institutions, which (sic will) ultimately prove detrimental to the economy of the nation. Therefore, the High Court should be extremely careful and circumspect in exercising its discretion to grant stay in such matters. Of course, if the petitioner is able to show that its case falls within any of the exceptions carved out in Baburam Prakash Chandra Maheshwari v. Antarim Zila Parishad, Whirlpool Corpn. v. Registrar of Trade Marks and Harbanslal Sahnia v. Indian Oil Corpn. Ltd. and some other judgments, then the High Court may, after considering all the relevant parameters and public interest, pass an appropriate interim order.”

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The writ petition ought not to have been entertained and the interim order granted for the mere asking without assigning special reasons, and that too without even granting opportunity to the Appellant to contest the maintainability of the writ petition and failure to notice the subsequent developments in the interregnum. The opinion of the Division Bench that the counter affidavit having subsequently been filed, stay/modification could be sought of the interim order cannot be considered sufficient justification to have declined interference.

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The writ petition ought not to have been entertained and the interim order granted for the mere asking without assigning special reasons, and that too without even granting opportunity to the

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Appellant to contest the maintainability of the writ petition and failure to notice the subsequent developments in the interregnum. The opinion of the Division Bench that the counter affidavit having subsequently been filed, stay/modification could be sought of the interim order cannot be considered sufficient justification to have declined interference.

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We cannot help but disapprove the approach of the High Court for reasons already noticed in Dwarikesh Sugar Industries Ltd. vs. Prem Heavy Engineering Works (P) Ltd. and Another, 1997 (6) SCC 450, observing :-

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“32. When a position, in law, is well settled as a result of judicial pronouncement of this Court, it would amount to judicial impropriety to say the least, for the subordinate courts including the High Courts to ignore the settled decisions and then to pass a judicial order which is clearly contrary to the settled legal position. Such judicial adventurism cannot be permitted and we strongly deprecate the tendency of the subordinate courts in not applying the settled principles and in passing whimsical orders which necessarily has the effect of granting wrongful and unwarranted relief to one of the parties. It is time that this tendency stops.”

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In United Bank of India v. Satyawati Tondon and others

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[(2010) 8 SCC 110], upon detailed consideration of the statutory scheme under the SARFAESI Act, 2002, availability of a remedy to the aggrieved under Section 17 before the Tribunal and the appellate remedy under Section 18 before the Appellate Tribunal, object and purpose of the legislation, Hon'ble Apex Court observed that a writ petition ought not to be entertained in view of the availability of an alternative statutory remedy,

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“43. Unfortunately, the High Court overlooked the settled law that the High Court will ordinarily not entertain a petition under Article 226 of the Constitution if an effective remedy is available to the aggrieved person and that this rule applies with greater rigour in matters involving recovery of taxes, cess, fees, other types of public money and the dues of banks and other financial institutions. In our view, while dealing with the petitions involving challenge to the action taken for recovery of the public dues, etc. the High Court must keep in mind that the legislations enacted by Parliament and State Legislatures for recovery of such dues are a code unto themselves inasmuch as they not only contain comprehensive procedure for recovery of the dues but also envisage constitution of quasi-judicial bodies for redressal of the grievance of any aggrieved person. Therefore, in all such cases, the High Court must insist that before availing remedy under Article 226 of the Constitution, a person must exhaust the remedies available under the relevant statute. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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It is a matter of serious concern that despite repeated pronouncement of this Court, the High Courts continue to ignore the availability of statutory remedies under the DRT Act and the SARFAESI Act and exercise jurisdiction under Article 226 for passing orders which have serious adverse impact on the right of banks and other financial institutions to recover their dues. We hope and trust that in future the High Courts will exercise their discretion in such matters with greater caution, care and circumspection.”

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In Civil Appeal Nos.10243-10250 of 2018 [ICICI Bank Ltd.

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v. Umakanta Mohapatra and Others] , by order dated 5.10.2018, the

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Hon'ble Apex Court reaffirmed the legal position that High Court has no jurisdiction to entertain writ petitions under Article 226 of the Constitution

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of India, relating to matters coming under the purview of SARFAESI Act, 2002, where a statutory remedy is available by filing an application under Section 17 of the said Act.

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In the light of the above discussion and decisions, the instant appeal is

dismissed.

Sd/-

S.MANIKUMAR

CHIEF JUSTICE

Sd/-