Allowed

M/S Marickar Plantations Pvt. Ltd., v. Kerala Transport Development Finance Corporation Limited

Kerala HC10 Mar 2020WP(C)/2615/2020

Case brief

AI extract

What is this about?

Writ petition challenging adjustment of One-Time Settlement deposit against cheque bounce cases. Court held adjustment improper and directed respondent to allow petitioners to settle loan via existing scheme.

What did the court decide?

Directed Respondent to permit petitioners to participate in One-Time Settlement Scheme, noting remitted amount, and adjust future payments per scheme.

M/S Marickar Plantations Pvt. Ltd., Vs… — Contract and Commercial Disputes | 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 MRS. JUSTICE ANU SIVARAMAN

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TUESDAY, THE 10TH DAY OF MARCH 2020 / 20TH PHALGUNA, 1941

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WP(C).No.2615 OF 2020(B)

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PETITIONERS:

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1 M/S MARICKAR PLANTATIONS PVT. LTD., 41/3611, OLD RAILWAY STATION ROAD, COCHIN-68, REPRESENTED BY ITS DIRECTOR, SHAMIER MARICKAR .F.M.

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2 SHAMIERMARICKAR.F.M.

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S/O FAZILMARICKAR, A6, KENT NALUKETTU, VENNALA, CHAKKARAPARAMBU, KOCHI.

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BY ADV. SRI.C.P.MOHAMMED NIAS

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RESPONDENT:

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KERALA TRANSPORT DEVELOPMENT FINANCE CORPORATION

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LIMITED,

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LEVEL 8 (6TH FLOOR), TRANS TOWERS, VAZHUTHACAUD, THIRUVANANTHAPURAM, REPRESENTED BY ITS MANAGING DIRECTOR-695 001.

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R1 BY SRI.T.P.SAJAN, SC, KTDFC

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 10.03.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C).No.2615 OF 2020(B)

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JUDGMENT

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This writ petition is filed seeking the following prayers:-

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“(i) To call for records leading upto Ext.P6 and to quash the same by issuing a writ of certiorari or any other appropriate writ.

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(ii) To permit us to participate in the OTS scheme treating the amount of Rs.91,30,525/- as sufficient for the same; or in the alternative

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(iii) To issue a writ of mandamus or any other appropriate writ directing the respondent to return the amount of Rs.91,30,525/- deposited by the first petitioner towards the 10% deposit of principal amount due with respect to the loan in order to participate in the One-Time Settlement Scheme of the respondent.”

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Heard the learned counsel for the petitioners and the learned Standing Counsel for the KTDFC.

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It is submitted by the learned counsel for the petitioners that the 1^st petitioner had availed a loan of Rs.25 Crore from the respondent. Only an amount of Rs.9,00,00,000/- was disbursed and the petitioners had remitted Rs.6,84,80,197/-. The petitioners submitted a request for rescheduling of the loan. However, it is

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WP(C).No.2615 OF 2020(B)

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submitted that the revenue recovery proceedings were initiated which were challenged by the petitioners. In the meanwhile, an intimation was received by the petitioners stating that the entire transactions can be settled for an amount of Rs.9,13,05,245/- under the OTS scheme and that the petitioners were required to make a pre-deposit of 10% towards the initial payments. It is stated that the petitioners had remitted Rs.91,30,525/- towards the 10% of the principal amount due under the OTS, but the same had been adjusted against one of the pending cheque cases as against the petitioners. It is stated that on account of the act of the respondent, the petitioners were unable to make the remaining payments towards the OTS scheme.

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A counter affidavit has been placed on record by the respondent. It is stated that the loan had been availed in the year 2012 and that there is outstanding liability of more than 17 crores in the loan account. It is further stated that the petitioners had earlier sought to avail the benefit of the OTS scheme, but they did not make the payments in time. It

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WP(C).No.2615 OF 2020(B)

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is stated that though rescheduling had been granted earlier also, the petitioners have not been making the remittances and the revenue recovery actions have to be initiated against them. It is stated that, by Ext.P2, OTS scheme had been formulated by the respondent and the petitioners were invited by Ext.P1 letter to make payments under the OTS scheme. It is submitted that the petitioners had made a payment under the scheme amounting to Rs.91,30,525/- out of the same, it is submitted that an amount of Rs.43,40,635/- had been adjusted towards a cheque case in respect of a defaulted EMI. It is submitted that the said case under Sections 138 & 142 of the Negotiable Instrument Act had been pending before the Judicial First Class Magistrate Court -II, Peerumedu and that the adjustment of the said amount was perfectly legal and valid. It is contended that in case the petitioners make further remittances under the scheme, the same will be considered appropriately.

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I have considered the contentions advanced. Ext.P2 was an One Time Settlement Scheme formulated by

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WP(C).No.2615 OF 2020(B)

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the respondent. It is not in disputed before me that the petitioners had been offered the benefit of the same. The petitioners were required to remit an amount of Rs.91,30,525/- to avail the benefit of Ext.P2 scheme. Thereafter, it appears that, out of the amount remitted by the petitioners towards the initial payment under the scheme, amounts have been adjusted towards pending cheque cases.

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It is contended by the learned counsel for the respondent that it is only due to the fact that chances had been repeatedly given to the petitioners to settle the account and since no settlement to be arrived at, the amounts have been so adjusted. It is submitted that there is fresh One Time Settlement scheme being formulated by the respondent and in case the petitioners wish to participate in the scheme, they can do so.

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Having considered the contentions advanced on either side, I am of the opinion that the petitioners are entitled to a further chance to participate in the scheme

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WP(C).No.2615 OF 2020(B)

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giving credit to the amounts remitted by them as per the offer extended to the petitioners on the basis of Ext.P2. The intention of the One Time Settlement Scheme is to make an attempt to settle all the disputes between the lender and the borrower and to see that the borrowers are given a reasonable opportunity to pay off the amounts due. In view of the fact that the petitioners had remitted an amount of Rs.91,30,525/- on the basis of an assurance that they will be given a chance to participate in the scheme, I am of the opinion that the adjustment of amounts paid under the scheme to other pending cases was not proper. The availing of the scheme should give a question to all pending claims between the parties.

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In the above view of the matter, there will be a direction to the respondent to permit the petitioners to close the loan account by availing of the benefits of One Time Settlement scheme, taking note of the amount remitted by them in pursuance to Ext.P2. The petitioners shall make further remittances on the basis of the scheme extended to

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WP(C).No.2615 OF 2020(B)

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them. In case the petitioners make further payment on the basis of the scheme extended, the amount paid by the petitioners, pursuant to Ext.P3, will be adjusted towards the principal amounts due as per the scheme. In case the amounts are not settled under the scheme, after extending the opportunity to the petitioners, the respondent will be free to proceed against the petitioners in accordance with law.

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This writ petition is ordered accordingly.

Sd/-

ANU SIVARAMAN

JUDGE

Bng/19.03.2020

WP(C).No.2615 OF 2020(B)

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APPENDIX

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PETITIONERS EXHIBITS:

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EXHIBIT P1 TRUE COPY OF THE RESPONDENTS LETTER DATED 9.10.2018 EXHIBIT P2 TRUE COPY OF THE GUIDELINES ISSUED WITH RESPECT TO THE ONE-TIME SETTLEMENT SCHEME (LOAN ADALAT) OF THE RESPONDENT EXHIBIT P3 TRUE COPY OF THE FIRST PETITIONERS LETTER DATED 17.4.2019 TO THE RESPONDENT

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EXHIBIT P4 TRUE COPY OF THE CHEQUES BEARING NUMBER 384220 FOR RS.43,40,635/-384223 FOR RS.43,40,635/- AND 384221 FOR RS.4,49,255/- ALL DATED 1.3.2019 EXHIBIT P5 TRUE COPY OF THE RESPONDENT'S LETTER DATED 1.11.2019 EXHIBIT P6 TRUE COPY OF THE RESPONDENT'S LETTER DATED 9.1.2020 EXHIBIT P7 TRUE COPY OF THE FIRST PETITIONERS LETTER DATED 15.1.2020 TO THE RESPONDENT

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RESPONDENT'S EXHIBITS:

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EXHIBIT R1 A TRUE COPY OF THE ORDERS OF THE OTS JURY IN THE LOAN WITH RESPECT TO THE OTS ADALAT HELD ON 26.6.2019

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EXHIBIT R1 B TRUE COPY OF THE ORDERS OF THE OTS JURY IN THE LOAN WITH RESPECT TO THE OTS ADALAT HELD ON 31.8.2019

M/S Marickar Plantations Pvt. Ltd., v. Kerala Transport Development Finance Corporation Limited

Case brief

What is this about?

What did the court decide?

M/S Marickar Plantations Pvt. Ltd., v. Kerala Transport Development Finance Corporation Limited

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

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