Petitioner challenged bank's takeover of secured asset claiming illegal closure of unit under SARFAESI Act. Court dismissed writ, holding petitioner estopped due to non-compliance with prior order and lack of fraud, noting alternative remedy availability.
Writ petition dismissed. No cost imposed due to petitioner's hospitalised grandchild.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE AMIT RAWAL
MONDAY, THE 10TH DAY OF FEBRUARY 2020 / 21ST MAGHA, 1941
WP(C).No.1502 OF 2020(K)
PETITIONER:
MRS.LALITHA BHAI AGED 64 YEARS PRO.M/S. SAKTHI PLASTICS, DOOR NO. VII/142, KIRALOOR P.O. AND RESIDING AT W/O. LATE PADMANABHAN NAIR, SREEVIHAR, MUTHUVARA P.O. PUZHAKKAL, THRISSUR 680 553.
BY ADV. SMT.E.V.MOLY
RESPONDENT:
STATE BANK OF INDIA PATTURAIKKAL BRANCH, THRISSUR PAZHOOR ARCADE, THRISSUR 680 022, REPRESENTED BY ITS AUTHORIZED OFFICER.
R1 BY SC SRI.M.JITHESH MENON
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 10.02.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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JUDGMENT
Petitioner has approached this court under
Article 226, despite having already availed the alternative remedy under Article 226, for a writ of mandamus directing the respondent bank to call for the records leading to the taking up of physical possession of the secured asset consisting of the running business unit and quash the proceedings and consider possible waiver of penal interest, charges etc. Petitioner is stated to have availed this facility from the bank to the tune of 12.5 lakhs and thereafter the limit was enhanced to 20 lakhs and further to 40 lakhs. On account of failure to pay the loan amount, the account was classified as non-performing asset (NPA) on 28.02.2019. At that time, the amount outstanding was Rs.80 lakhs. Petitioner approached this court vide WP(C) 16526 of 2018, However, this court, considering the peculiar facts and circumstances, disposed of the writ petition directing the petitioner to pay 25 lakhs within one month.
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Petitioner did not deposit. However, in the meantime, on 22.06.2018, she filed S.A.No.281 of 2018, which is heard and is still pending. On 01.11.2018, notice was issued under Section 14(1) of SARFAESI Act. Thereafter, petitioner submitted a proposal for one time settlement, raising the amount to Rs.55 lakhs and then to 60 lakhs. The proposal aforementioned has been rejected vide communication dated 14.12.2019 (Ext.P7).
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upon by this court do not estop the bank from closure of the unit, as it is a prerogative. When no proof is placed on record, this court can only dismiss the writ petition, particularly when petitioner has already availed the alternative remedy.
the materials. The facts noticed above are not in dispute. The point raised for consideration is whether this court can interfere, particularly when the directions of this court in Ext.P1 have not already been regarded and respected by the petitioner. According to her contention, no amount of Rs.25 lakhs has ever been deposited. The petitioner is attempting to play hide and seek. Petitioner is estopped to claim the relief of waiving off the penal interest and in the absence of any fraud or misrepresentation, this court, while exercising the power under Article 226 for judicial review, cannot change the terms and conditions of an agreement. The equity also does not lie in favour of the petitioner, as it does not fall within
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the expression “a person who seeks equity must do it”. No material has been placed on record with regard to the salary of the alleged employees, contribution towards EPF/GPF or any other compliance of prevailing laws. Notice of possession is dated 01.11.2018, when the matter was pending before the DRT in the SA, aforementioned, petitioner could have moved a separate application for espousing grievance, if any, in such proceedings. For the reason aforementioned, I am of the view that this writ petition is devoid of merit. Though in the first blush, it is liable to be dismissed with cost, keeping in view that the grand son of the petitioner is hospitalised, I do not intend to impose any cost.
Writ petition is dismissed.
Sd/- AMIT RAWAL, JUDGE
Lgk
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APPENDIX
PETITIONER'S EXHIBITS:
| EXHIBIT | P1 | THE TRUE COPY OF THE JUDGMENT IN WPC NO. 16 526 OF 2018 DATED 22ND MAY 2018. |
|---|---|---|
| EXHIBIT | P2 | THE TRUE COPY OF THE RELEVANT PAGES OF THE LOAN ACCOUNT STATEMENT FOR THE PAYMENT. |
| EXHIBIT | P3 | THE TRUE COPY OF THE NOTICE ISSUED BY THE ADVOCATE COMMISSIONER IN CRL. MP NO. 6187 OF 2018 FILED BEFORE HONORABLE CHIEF JUDICIAL MAGISTRATE COURT AT THRISSUR. |
| EXHIBIT | P4 | THE TRUE COPY OF THE PROPOSAL FOR SETTLEMENT FOR RS 55 LAKH SUBMITTED BY THE PETITIONER. |
| EXHIBIT | P5 | THE TRUE COPY OF THE ENHANCED PROPOSAL SUBMITTED BY THE PETITIONER FOR SETTLEMENT @ RS. 57 LAKH. |
| EXHIBIT | P6 | THE TRUE COPY OF THE ONETIME SETTLEMENT PROPOSAL FOR RS. 60 LAKH DATED 30TH NOVEMBER 2019 SUBMITTED TO THE BANK AND APPLICATION SUBMITTED BEFORE THE HONRABLE CJM DATED 13/12/2019 FOR TIME. |
| EXHIBIT | P7 | THE TRUE COPY OF LETTER REJECTING PROPOSAL. |
| EXHIBIT | P8 | TRUE COPY OF THE DISCHARGE SUMMERY. |
| RESPOND | ENT'S/S EX | HIBITS: |
| EXHIBIT | R1 A | TRUE COPY OF THE NOTICE ISSUED UNDER SECTION 13 (4) OF THE SARFEASI ACT 2002, DATED 18.05.2018. |
| EXHIBIT | R1 B | TRUE COPY OF THE COMMUNICATION ISSUED BY THE BANK DATED 27.11.2019. |
3 issues framed by the court
Whether the High Court can interfere in the bank's decision to close down a running manufacturing unit despite Section 13(1) of SARFAESI Act.
Whether the petitioner is entitled to waive penal interest and charges given failure to deposit the directed amount and absence of fraud.
Whether the alternative remedy under the DRT/SARFAESI framework precludes writ jurisdiction under Article 226.
5 provisions across 2 enactments
MRS. LALITHA BHAI
STATE BANK OF INDIA PATTURAIKKAL BRANCH
AMIT RAWAL
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
