Dismissed

Suresh A.S. v. Kerala State Co-Operative Bank Limited

Kerala HC4 Feb 2021WP(C)/1721/2021

Case brief

AI extract

What is this about?

Petitioner challenged the bank’s notice under the SARFAESI Act seeking regularisation of a loan. Court dismissed the writ petition, holding that such action cannot be impugned via writ. Petitioner’s failure to comply with an earlier order granting instalment relief was noted.

What did the court decide?

Writ petition dismissed; coercive steps already initiated under SARFAESI Act remain valid.

Suresh A.S. Vs Kerala State Co-Operative Bank Limited — Banking and Recovery | Kerala HC (2021)

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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 A.M.BADAR

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THURSDAY, THE 04TH DAY OF FEBRUARY 2021 / 15TH MAGHA,1942

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WP(C).No.1721 OF 2021(M)

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PETITIONER/S:

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SURESH A.S., AGED 47 YEARS, S/O.SANKARAN, ALAPPATTU HOUSE, KOTHAMANGALAM P.O., ERNAKULAM DISTRICT-686 691.

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BY ADV. SRI.P.K.SAJEEVAN

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RESPONDENT/S:

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KERALA STATE CO-OPERATIVE BANK LIMITED, KOTHAMANGALAM TOWN EVENING BRANCH, 1ST FLOOR, GANDHI SQUARE SHOPPING COMPLEX, POST OFFICE JUNCTION, KOTHAMANGALAM-686691, REP BY ITS SECRETARY.

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R1 BY ADV. SRI.N.RAGHURAJ

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 04.02.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C).No.1721 OF 2021 2

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JUDGMENT

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Dated this the 4th day of February 2021

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Heard both sides.

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Learned counsel for the petitioner submitted that petitioner had availed a loan from the respondent bank and term of the loan was for eight years from 2015. The petitioner was regular in paying the instalments of loan. He submitted that because of serious ailments of the petitioner, some instalments were defaulted and the petitioner approached this Court by filing W.P.(C). No.10160/2018 and accordingly instalments were granted to the petitioner. According to the learned counsel for petitioner, due to illness of mother and loss of job, the petitioner could not repay the balance amount of loan and the bank refused to regularise the loan account. The petitioner is not in a position to repay the amount of loan except by instalments. With this, it is argued by the learned counsel appearing for the petitioner that the respondent has no legal right to issue Ext.P3 notice, demanding outstanding amount of loan. The petitioner needs to be granted instalments.

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Learned Standing Counsel appearing for the respondent

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bank submitted that the petition is not maintainable because on an earlier occasion, discretionary relief was sought and the direction

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WP(C).No.1721 OF 2021 3

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given by this Court in that petition is not followed by the petitioner.

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I have considered the submissions so advanced and also perused the materials placed before me.

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The petitioner had availed loan from the respondent bank. It is seen that the entire loan was recalled by the respondent bank by issuing notice under Section 13(2) of the SARFAESI Act on 26.04.2017. The petitioner approached this Court in the matter by filing W.P.(C). No.10160 of 2018, which came to be decided on 02.04.2018. Following is the direction given to the petitioner while disposing that petition:-

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''The petitioner is permitted to pay the overdue amount in 10 equal monthly instalments. He is directed to pay the overdue amount along with the regular monthly instalments. If the petitioner commits default in remitting any of the instalments, the instalment facility will stand forfeited. Coercive steps shall not be initiated in the meanwhile.''

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The petitioner has failed to abide by this direction given

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by the Court while disposing of his earlier petition by granting him facility of instalments for paying overdue amount of loan. Further notice on Ext.P3, which is impugned in this petition makes it clear that the petitioner has committed default in repayment of loan and despite this notice at Ext.P3, the petitioner has not refunded the amount of loan. Subsequent thereto, again notice dated 12.11.2020 (Ext.P4) came to be issued demanding the petitioner

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WP(C).No.1721 OF 2021 4

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to repay the amount of loan within seven days from the date of receipt of notice.

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It is thus clear that once relief in equity was sought by the petitioner and he failed to comply with the direction given by this Court in its petition. The respondent has already initiated action under the SARFAESI Act for recovery of the amount of loan advanced to the petitioner. As held by the Hon'ble Apex Court in

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Authorized Officer, State Bank of Travancore and another

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vs. Mathew K.C (2018(1) KLT 784), action taken by the secured creditor under the SARFAESI Act cannot be impugned in by filing a writ petition before this Court. Prayer clause made in this petition makes it clear that the action take by the secured creditor under the SARFAESI Act is impugned in this petition. In this view of the matter, the writ petition is dismissed.

Sd/-

A.M.BADAR

JUDGE

ajt

WP(C).No.1721 OF 2021 5

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APPENDIX

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PETITIONER'S/S EXHIBITS:

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EXHIBIT P1 THE TRUE COPY OF THE NOTICE DATED 26.04.2017 WITH TRANSLATION EXHIBIT P2 THE TRUE COPY OF THE JUDGMENT IN WRIT PETITION NO.10160 OF 2018 DATED 2.4.2018 EXHIBIT P3 THE TRUE COPY OF THE SALE NOTICE DATED 17.11.2020 WITH TRANSLATION EXHIBIT P4 – THE TRUE COPY OF THE NOTICE DATED 12.11.2020 TO THE PETITIONER FOR THE DUE AMOUNT OF RS.5,50,105/-

Suresh A.S. v. Kerala State Co-Operative Bank Limited

Case brief

What is this about?

What did the court decide?

Suresh A.S. v. Kerala State Co-Operative Bank Limited

Case brief

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