Allowed

Bindu Vijayakumar v. the Regional Manager

Kerala HC3 Jan 2022WP(C)/19672/2021

Case brief

AI extract

What is this about?

In a writ petition, the petitioner sought an extension to pay the balance amount under a One-Time Settlement (OTS) scheme for an overdue loan, citing the economic hardship caused by the 2021 State lockdown. The Court distinguished prior precedents holding strict non-interference, relying on Supreme Court decisions to allow extensions in exceptional circumstances where a borrower's bona fides are e

What did the court decide?

The writ petition was allowed; a direction issued to the second respondent to dispose of representations and grant a limited extension of time for repayment, subject to the imposition of reasonable in

Bindu Vijayakumar Vs the Regional Manager — Contract and Commercial Disputes | Kerala HC (2022)

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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 BECHU KURIAN THOMAS

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MONDAY, THE 3^RD DAY OF JANUARY 2022 / 13TH POUSHA, 1943

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WP(C) NO. 19672 OF 2021

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PETITIONER:

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BINDU VIJAYAKUMAR AGED 49 YEARS,W/O.VIJAYAKUMAR, SIVASHYLAM, EDUKKADOM.P.O, EZHIKONE, KOLLAM-691505.

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BY ADV R.GOPAN

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RESPONDENTS:

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1 THE REGIONAL MANAGER STATE BANK OF INDIA, REGIONAL OFFICE, RAVIS ARCADE, KOLLAM.P.O, PIN-691013.

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2 THE CHIEF MANAGER, STATE BANK OF INDIA, STRESSED ASSETS RECOVERY BRANCH, LMS COMPOUND,NEAR MUSEUM WEST GATE, VIKAS BHAVAN.P.O, THIRUVANANTHAPURAM-695503.

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3 THE BRANCH MANAGER STATE BANK OF INDIA, PATHANAPURAM BRANCH, KOLLAM-691013.

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BY ADV JAWAHAR JOSE, SC

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 24.11.2021, THE COURT ON 03.01.2022 DELIVERED THE FOLLOWING:

W.P.(C) No.19672/21

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“C.R.”

BECHU KURIAN THOMAS, J.

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W.P.(C) No.19672 of 2021

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Dated this the 3^rd day of January, 2022

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JUDGMENT

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When the loan account of the petitioner was declared as a non performing asset, proceedings under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (for short, 'the Act') were initiated. While steps for enforcement of the security interest were being carried on, a one time settlement scheme (for short ‘OTS’) was offered to the petitioner by the respondents, which was accepted. The dispute in this writ petition arises from the failure of the petitioner to comply with the terms of the OTS scheme in its entirety.

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The liability of the petitioner arose under an overdraft facility granted by the 3^rd respondent. When default occurred, securitisation proceedings were initiated against the petitioner. Subsequently, a scheme for OTS was offered to the petitioner, referred as 'the SBI OTS 2020' as per Ext.P2 dated 20-10-2020.

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Under the scheme for one time settlement offered to the

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petitioner, Rs.1,07,81,341/- (for short, 'OTS amount') was fixed as the total amount of settlement payable. The scheme envisaged payment of the amounts in four tranches. The first tranche of payment was 5%

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of the OTS amount to be paid for processing the application. The second instalment was a payment of 10% of the OTS amount, which was liable to be deposited within 30 days from the date of sanction of the OTS. A further 10% was liable to be deposited within 60 days from the date of sanction and the balance was to be paid within eight months from the date of sanction of the one time settlement scheme.

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Petitioner paid the first three tranches under the OTS and a further portion under the last instalment. However, petitioner could not pay the last instalment by 30-07-2021, in its entirety and hence she lost the benefit under the OTS scheme. When notices were issued for the sale of the property, this writ petition was preferred seeking a direction to permit the petitioner to pay the balance amount due under the OTS scheme offered to the petitioner along with interest due for the balance amount. Representations submitted before the bank to the above effect are also sought to be disposed of in a time-bound manner.

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A counter affidavit was filed by the second respondent

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referring to the past conduct of the petitioner and the defaults committed by her in repayment of the overdraft facility. It was pointed out that the bank had accepted the proposal for one-time settlement for the OTS amount and that petitioner had paid only an amount of Rs.41,81,000/- in place of Rs.1,07,81,341/-. Since, petitioner had failed to pay the balance amount under the OTS, proceedings under the Securitisation Act were continued and a sale notice dated 16.08.2021 was issued, scheduling the property for sale on 24.09.2021. It was further pleaded that, petitioner had approached the bank by offering another settlement proposal in between Rs.1.75 crores and Rs.2 crores, which the bank was willing to consider. However, in the meantime, the writ petition was filed.

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In the reply affidavit, petitioner narrated the details of

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amounts paid by her and stated that the last payment under the OTS scheme was made on 30.03.2021 and that thereafter, due to the lockdown declared in the State of Kerala from 08.05.2021 to 08.07.2021, all means of livelihood of the petitioner were curtailed and there was no way to continue any business or earn any income. Petitioner further averred that, as per the OTS scheme, the last date for payment was 30.07.2021, as evident from Ext.P4, but within the

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said period due to the lockdown imposed, petitioner lost the entire two months and even though the respondent bank had granted facilities to other persons similarly situated, by extending the period for payment, petitioner was not given such benefits. Petitioner also stated that the delayed amount could be paid with reasonable interest so that the respondent bank will not be put to any prejudice.

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I have heard Sri.R.Gopan, learned counsel for the petitioner

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as well as Sri.Jawahar Jose, learned Standing Counsel for the respondents.

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Courts cannot vary the terms of an agreement especially in the exercise of jurisdiction under Article 226 of the Constitution of India. The terms of one-time settlement scheme cannot also be interfered with or varied to the advantage or disadvantage of any person by resorting to the powers under Article 226 of the Constitution of India. A Division Bench of this Court in Asokan Vasu v. State Bank of India (2020 SCC OnLine Ker. 4282) had observed that “ A loan is granted in terms of the contract, and grant of one time settlement or re-scheduling of the loan amount is really a modification of the contract, which can only be done by mutual consent of the parties, vide Section 62 of the Contract Act, 1872.

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The court cannot alter the terms of the contract. ”

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In the aforestated decision, it was further observed that the Court has no power to extend the terms of a one-time settlement and that there must be judicial restraint to be observed by the court while considering writ petitions under Article 226 of the Constitution of India seeking extension of terms of one time settlement schemes.

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While bearing in mind the aforesaid principles, this Court cannot be oblivious of the circumstances that are peculiar to some of the cases. The Supreme Court had in the decision in Vijayakumari v. Indian Bank (AIR 2018 SC 759), observed that in exceptional circumstances, the terms of settlement scheme can be extended without causing prejudice to the respondents by compelling payment of interest for the delayed payment. In the aforesaid decision the Supreme Court observed as follows:

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“8............................... There was undoubtedly some delay in payment of the amount due as per the terms of the settlement reached in the Lok Adalat. It was also agreed by and between the parties that if the terms of payment including the time schedule of payment is not adhered to, the respondent - Bank will be at liberty to recover the entire amount due. The DRAT in the impugned order had considered the matter and had taken the view that even on the face of the express terms

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between the parties that the bank would have a right to recover the full amount due in the event of default on the part of the appellants, the same was not the only course of action or the sole option and that on the grounds shown for the delay the same is liable to be understood in favour of the borrower. Accordingly, the matter was closed. In the writ petition filed by the Bank the position was reversed.

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9. In the facts of the present case, the view taken by the learned Appellate Tribunal (DRAT), as noted above, cannot be said to be so wholly unreasonable or unsustainable so as to justify interference by the High Court. If the agreed amount stood paid though with some delay, condonation of the delay is a possible course of action, if the grounds for delay justified a departure from what was also agreed upon, i.e., the right of a Bank to recover the entire dues. All would depend on the facts of each case. Having regard to the totality of the facts of the present case, we are of the view that the ends of justice would be met if for the delay that had occurred, the appellants are made liable to pay simple interest @ 24% p.a. on the amount of Rs. 34.5 lakhs (as agreed to in the Lok Adalat) for the period from the date of the Award of Lok Adalat, i.e., 10.09.2004 to the date of last payment, i.e., 29.10.2006. In addition, a further amount of Rs. 10 lakhs to be paid by the appellants to the respondent - Bank as compensation and costs.”

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In view of the above decision of the Supreme Court, which

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decision was not brought to the notice of this Court in Asokan

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Vasu’s case (supra), it can be held that under certain exceptional circumstances, a departure from the normal rule that the terms of settlement cannot be varied by Court under Article 226, is possible. The departure can be directed based upon the facts peculiar to each case and exceptional circumstances available, on a consideration of the entirety of the case.

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It is evident from Ext.P2, that the OTS amount ought to have been paid in four instalments, within a period of eight months from the date of sanction of the OTS. In Ext.P4, there is an observation that the OTS scheme was sanctioned to the petitioner on 30.11.2020 for an amount of Rs.1,07,61,341/-. The application for settlement was processed on a deposit of Rs.5,40,000/-, which was paid by the petitioner on 19.11.2020. Thereafter on 31.12.2020 an amount of Rs.10,71,000/- was paid, which formed the second instalment of the 10% of the OTS amount. Again, by 01.02.2021, a further amount of Rs.10,70,000/- was paid, being the third instalment of 10% of the OTS amount. The balance amount ought to have been paid by the petitioner latest by 30.07.2021 as per the sanction letter. However, instead of paying the balance amount within the stipulated period, the petitioner could pay Rs.10,00,000/- on 29.03.2021 and

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another Rs.5,00,000/- on 30.03.2021. Thus, a balance amount of Rs.65,80,341/- was due from the petitioner under the OTS scheme as on 30.07.2021.

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While the economy of the State was recovering, though in a snail’s pace, from the initial restrictions and lockdown imposed in the year 2020, the lockdown imposed in the year 2021 impacted the economic recovery of the State drastically. There is no dispute that the State of Kerala had declared complete lockdown from 05.05.2021 to 05.07.2021, which period of two months fell within the time of eight months granted to the petitioner to clear the terms of OTS scheme. Since the period of lockdown fell within the period of OTS scheme, it is essential in the interest of justice that the petitioner is granted the benefit of condonation of delay to repay the amount under the terms of the OTS scheme. In Asokan Vasu’s case (supra), the original period of OTS expired by 23-03-2020, which was before the lockdown was imposed, while in the instant case, the imposition of lockdown happened during the period of OTS.

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To compel a person to raise revenue during the period of complete lockdown is akin to compelling a person to do an impossibility. The reason for the grant of eight months' period from

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the date of sanction of OTS scheme was to give an opportunity to the petitioner to raise the amount due under the scheme. Since the lockdown fell within that period, the benefit that was actually granted

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to the petitioner could not be availed of by her to its full extent. Therefore, this Court is of the opinion that the case of the petitioner falls within the exceptional circumstances wherein acceptance of one time settlement scheme can be enforced by permitting the respondent bank to accept interest for the delayed period.

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The decision relied upon by the respondents in Tamilnadu Industrial Investment Corporation v. Millennium Business Solutions Private Limited (2004 SCC OnLine Mad.840) had not considered the impact of an unprecedented situation like lockdown imposed on account of Covid-19 pandemic falling within the period of one time settlement scheme. The decision in Asokan Vasu v. State Bank of India (2020 SCC OnLine Ker.4282) though related to a period during Covid restrictions, the impact of the complete lockdown imposed on account of Covid-19 pandemic falling within the period of OTS scheme were not considered. Further, the decision of the Supreme Court in Vijayakumari v. Indian Bank (AIR 2018 SC 759), was also not brought to the notice of this Court. The exceptional

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circumstances that arise in the instant case compel a different approach to be adopted. Therefore those decisions may not have a strict application to the facts of the present case.

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Further, in Anu Bhalla and Another v. District Magistrate, Pathankot and Another (AIR 2021 Punjab And Haryana 1), a Division Bench of the Punjab & Haryana High Court held, after referring to various decisions that, a deserving borrower, who had deposited substantial amounts within the originally stipulated period of settlement proved his bonafides and if he is willing to clear the remaining in a reasonable period and compensate the Bank for the delay, it should be considered with some leniency to attain the aim of such settlement. The following observations in the aforecited decision is relevant. “Further, it is also to be noticed, that invariably in all the settlement schemes or the policies, there are already sufficient checks and balances to identify eligible borrowers to whom such concessions can be extended to lead to an OTS. It is needless to mention that settlement takes place, only after the case of the borrower has been tested on the basis of criteria of eligibility for settlement provided under the scheme or policy itself. For example, we see, that cases of wilful default and fraud are normally excluded. Once the borrower is found to be eligible

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and the settlement takes place, it is important to keep in mind, that during the period of settlement, minor differences inter alia extension to pay the remaining settled amount in deserving cases, are creased out, equities are balanced in terms of the policy itself by the bank officials so that the settlement achieves its final goal, aimed at the betterment of both the parties. An amicable settlement is drawn up to achieve a win-win situation for both the creditor and debtor. The former is able to recover the amounts, in a more simplified manner and then use the same in its commercial cycle to pump in more liquidity and resultant revenues. On the other hand, the latter is able to settle a long dispute so as to focus its attention to a more productive field, rather than being involved in a litigative sphere. In such a situation, a deserving borrower, who has deposited substantial amounts within the original stipulated period of settlement, proved his bona fides and is willing to clear the remaining in a reasonable period, and compensate the creditor with interest for the period of delay, should be considered with some flexibility to achieve the ultimate aim of such settlements. It is with this perspective, that extensions can be considered to be granted to deserving cases .”

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The above observations apply in all its vigour to the instant case. In fact in the counter affidavit, the respondents have admitted that they are still not averse to granting another OTS scheme but for

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a higher amount. The said averment indicates that the petitioner is eligible for the benefit of yet another settlement scheme. The fact that petitioner had paid three out of the four instalments and even a portion of the fourth instalment under the scheme, cannot be ignored. Coupled with the above payment, the imposition of complete lockdown in the State for two months, within the period stipulated for the payment of the last instalment under the OTS scheme, also cannot be lost sight of.

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The conduct of the petitioner till 31.03.2021 clearly evinced a genuine intention to repay the amount. The first and second instalments were paid on time. When the petitioner had time till 31.07.2021 to pay the last instalment, she paid a portion of the said amount as early as on 30.03.2021. The pandemic situation in Kerala started escalating towards the end of April and by 05.05.2021, the State went into a lockdown. For the next two months, the State was in complete lockdown and the business started to recover several weeks after the lockdown restrictions were lifted. The unprecedented restrictions during lockdown bring to the fore a situation that cannot be guided or decided based upon precedents that have not taken into reckoning situations of a like nature. As mentioned earlier, the

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pleading in the counter affidavit that respondents are still willing to consider a fresh settlement offer between Rs.1.75 crores and Rs.2 crores, is also indicative of the willingness of the respondents to settle the liability of the petitioner through another one time settlement scheme. In the above circumstances, this Court is of the opinion that this case needs to be considered differently from other cases. The peculiar situations arising in the instant case needs to be considered in a special manner.

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The deliberations as above, persuade this Court to permit the petitioner to repay the balance amount due under the one-time settlement scheme, sanctioned on 30.11.2021, within a limited extended period. However, bearing in mind the judicial restraint directed to be observed by this Court in Asokan Vasu’s case (supra) regarding extension of time in the matter of one time settlements, I am of the opinion, that the representations filed by the petitioner as Ext.P6 and Ext.P7 ought to be disposed of by the respondents on the basis of the observations contained in this judgment and grant the petitioner a limited extension of time, after fixing the interest payable on the balance amount due from the petitioner from 30.07.2021 till the date of payment and the period within which the balance amount

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under the OTS Scheme with the interest so fixed should be paid by the petitioner.

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Accordingly, there will be a direction to the second respondent to dispose of Ext.P6 and Ext.P7 representations filed by the petitioner in the light of the observations contained in this judgment and grant a limited extension of time for repayment of the balance amount under the sanctioned OTS Scheme after imposing a reasonable percentage of interest on the balance amount due from the petitioner from 30.07.2021 till date of payment and also the period within which the said payment must be made by the petitioner.

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The decision as directed above shall be taken within a period of 10 days from the date of receipt of a copy of this Judgment after granting an opportunity of being heard to the petitioner. If the amount fixed as directed above is not paid within the time stipulated, the benefit of this judgment shall not enure to the petitioner.

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The writ petition is allowed as above.

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Sd/-

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BECHU KURIAN THOMAS

JUDGE

vps

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PETITIONER'S/S' EXHIBITS

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EXHIBIT P1	PHOTOCOPY	OF THE JUDGMENT DATED
	30.1.2018 HONOURABLE	IN W.P.(C)NO.286/2018 OF THIS COURT
EXHIBIT P2	PHOTOCOPY SETTLEMENT DATED 20.1	OF THE SCHEME OF ONE TIME SANCTIONED TO THE PETITIONER 0.2020
EXHIBIT P3	PHOTOCOPY THE PETITI THE RESPON	OF THE STATEMENT OF ACCOUNT OF ONER'S LOAN ACCOUNT ISSUED BY DET BANK DATED 31.8.2021
EXHIBIT P4	PHOTOCOPY	OF THE LETTER DATED 3.8.2021
	ISSUED BY PETITIONER	THE 2ND RESPONDENT TO THE
EXHIBIT P5	PHOTOCOPY THE 2ND R THE PETITI	OF THE SALE NOTICE ISSUED BY ESPONDENT DATED 16.8.2021 TO ONER
EXHIBIT P6	PHOTOCOPY 18.9.2021 BEFORE THE	OF THE REPRESENTATION DATED SUBMITTED BY THE PETITIONER 1ST RESPONDENT
EXHIBIT P7	PHOTOCOPY 18.9.2021 BEFORE THE	OF THE REPRESENTATION DATED SUBMITTED BY THE PETITIONER 2ND RESPONDENT.
EXHIBIT P8	TRUE COPY THE PETIT	OF REPRESENTATION SUBMITTED BY IONER BEFORE THE CUSTOMER
	GRIEVANCE LOCAL HEAD	CELL, STATE BANK OF INDIA, OFFICE, POOJAPPURA
EXHIBIT P9	TRUE COPY THE PETITI	OF REQUEST SENT BY THE SBI TO ONER DATED 27.9.2021
EXHIBIT P10	TRUE COPY CIVIL WRIT OF THE PUN	OF JUDGMENT DATED 22.9.2020 IN PETITION NO-5518/2020 DATED JAB AND HARYANA HIGH COURT
EXHIBIT P11	PHOTO COP	Y OF REPRESENTATION DATED
	23.9.2021 BEFORE THE	SUBMITTED BY THE PETITIONER 2ND RESPONDENT

Bindu Vijayakumar v. the Regional Manager

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Bindu Vijayakumar v. the Regional Manager

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