Allowed

M/S. Powerplus Power Unit, v. Indusind Bank

Kerala HC4 Sept 2023WP(C)/15055/2023

Case brief

AI extract

What is this about?

This writ petition challenged a bank's initiation of SARFAESI proceedings for loan repayment default. The court allowed the petition, directing the petitioner to clear dues within three weeks upon a new loan sanction and granting conditional relief to stay coercive actions.

What did the court decide?

Petitioner to discharge liabilities within three weeks; co-respondent bank to sanction loan; impugned bank to release mortgage upon payment; otherwise SARFAESI proceedings permissible.

M/S. Powerplus Power Unit, Vs Indusind Bank — Contract and Commercial Disputes | Kerala HC (2023)

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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 DINESH KUMAR SINGH

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MONDAY, THE 4^TH DAY OF SEPTEMBER 2023 / 13TH BHADRA, 1945

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WP(C) NO. 15055 OF 2023

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PETITIONER/S:

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1 M/S. POWERPLUS POWER UNIT, REPRESENTED BY ITS MANAGING PARTNER, K.KRISHNA KUMAR, 22/1486, PUTHALATH KRISHNAKRIPA, PALLURUTHY, EDA KOCHI,, PIN - 682010

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2 K P MURALEEDHARAN, AGED 57 YEARSS/O PRABHAKARAN MENON, PUTHENVEETTIL HOUSE, EDAKOCHI P.O., ERNAKULAM DISTRICT, PIN - 682010

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BY ADV V.PREMCHAND

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RESPONDENT/S:

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1 INDUSIND BANK, GOWRINARAYAN, 40/8399, M.G. ROAD, ERNAKULAM, REPRESENTED BY ITS BRANCH MANAGER, PIN - 682010

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2 THE BRANCH MANAGER, INDUSIND BANK, GOWRINARAYAN, 40/8399, M G ROAD, ERNAKULAM, PIN - 682018

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3 THE AUTHORISED OFFICER, INDUSIND BANK, OWRINARAYAN, 40/8399, M G ROAD, ERNAKULAM, PIN - 682018

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4 FEDERAL BANK LTD, AROOR BRANCH, ST AUGUSTINE'S CHURCH BUILDING, BYPASS JUNCTION, AROOR P O, ALAPPUZHA DISTRICT, REPRESENTED BY ITS BRANCH MANAGER., PIN - 688534

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5 BONIFUS P A, ADVOCATE COMMISSIONER, SAID MOHAMMED COMPLEX, C P UMMER ROAD, ERNAKULAM, PIN - 682010

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BY ADVS.VARGHESE C. KURIAKOSE

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ANJU MOHAN; RENJITH.R(K/695/2000); MOHAN JACOB GEORGE-SC

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 04.09.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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W.P.(C) No.15055/2023

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J U D G M E N T

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Heard Mr V Premchand, learned Counsel for the

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petitioners, Mr Renjith R, learned Counsel for R1 to R3, and Mr Mohan Jacob George, learned Counsel for R4.

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The present writ petition under Article 226 of the

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Constitution of India has been filed seeking inter alia the

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following reliefs:

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“i. Issue a writ of mandamus or any other appropriate writ, direction or order directing the 1^st respondent Bank to keep in abeyance all coercive actions pursuant to Exhibit P2 Notice against the 1^st petitioner till a decision is taken pursuant to Exhibit P5 to take over and clear the liability of the 1^st petitioner.

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ii. Issue a writ of mandamus or any other appropriate writ, direction or order directing the 1^st respondent to pass immediate orders on the scheme submitted by the 4^th respondent Bank to take over the liability of the 1^st petitioner and to keep all coercive steps against the 1^st petitioner in abeyance.

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iii. Issue a writ of mandamus or any other appropriate writ, direction or order directing the 2^nd respondent to pass

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W.P.(C) No.15055/2023

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immediate orders in Exhibit P6.

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iv. The petitioner also prays that this Hon’ble Court may be pleased to dispense with the translation of the documents produced in the vernacular language.

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v. Any other relief this Hon’ble Court deems fit.”

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2.1 The 1^st petitioner availed a loan facility from the 1^st respondent Bank pledging a property having an extent of 3.85 Ares in Survey No.184 of Edakochi Village. It appears that the petitioner has been unable to discharge his liability towards the Bank. As on 24.03.2022, the outstanding amount in respect of the loan was Rs.1,54,92,422.46. The Bank issued notices to the petitioner for discharge of the outstanding liabilities. However, the petitioner failed to discharge the liability, and therefore the Bank, having no option but to resort to the SARFAESI proceedings, filed an application before the Additional Chief Judicial Magistrate Court, Ernakulam in M.C. No.1113/2022, under the provisions of the SARFAESI Act. The Additional Chief Judicial Magistrate vide order dated

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W.P.(C) No.15055/2023

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03.03.2023 appointed an Advocate Commissioner to take physical possession of the secured asset.

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The 1^st and the 2^nd petitioners have made arrangements, whereby the 2^nd petitioner, through M/s Sky Bond Glazing - a partnership firm of which the 2^nd petitioner is one of the partners, has agreed to purchase the secured asset. The 4^th respondent Bank has sanctioned a loan of Rs.1.50 crores to M/s Sky Bond Glazing for the purchase of the secured asset. A copy of the said communication has been tendered in the Court, which is being taken on record and marked as ‘Paper X’.

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The learned Counsel for the petitioners submits that the petitioners are ready to discharge the liability of the 1^st respondent Bank. Besides the Rs.1.50 crores which has been sanctioned by the Federal Bank, any other outstanding amount will be discharged by the petitioners within a period of three weeks from today.

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W.P.(C) No.15055/2023

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The learned Counsel for the 1^st respondent, though, has objected to the maintainability of the writ petition, does not have much objection regarding the payment of outstanding dues by the petitioners and if the liability is discharged within a period of three weeks from today, the 1^st respondent Bank shall release the papers and discharge the mortgage.

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The learned Counsel for the 4^th respondent/Federal Bank also does not dispute the fact that the Federal Bank has agreed to sanction a loan of Rs.1.50 crores for the purchase of the said secured asset by the 2^nd petitioner through M/s Sky

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Bond Glazing.

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Considering the aforesaid facts and circumstances

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of the case, the present writ petition is disposed of as under:

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(i) The petitioners shall discharge all the liabilities of the 1^st respondent Bank within a period of three weeks from today.

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(ii) The Federal Bank shall honour its commitment to release

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W.P.(C) No.15055/2023

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Rs.1.50 crores as loan amount for the purchase of the

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secured asset by the 2^nd petitioner through M/s Sky Bond

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Glazing, subject to the fulfilment of the conditions of the Federal Bank for sanctioning the said loan amount.

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(iii) On discharge of liability by the petitioners, the 1^st

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respondent Bank shall release the papers and mortgage of the secured asset to the petitioners.

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(iv) In case the petitioners fail to discharge the liability as mentioned above, the 1^st respondent Bank shall be free to proceed with the SARFAESI proceedings in accordance

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with law.

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Sd/-

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DINESH KUMAR SINGH JUDGE

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jjj

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W.P.(C) No.15055/2023

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PETITIONER EXHIBITS	APPENDIX OF WP(C) 15055/2023
Exhibit-P1	A TRUE COPY OF THE COMMUNICATION DATED 04.04.2022 FROM THE 3RD RESPONDENT
Exhibit-P2	A TRUE COPY OF THE NOTICE DATED 20.04.2023 ISSUED BY THE ADVOCATE COMMISSIONER
Exhibit-P3	A TRUE COPY OF THE PETITION FILED BY THE 1ST PETITIONER BEFORE THE 2ND RESPONDENT DATED 20/02/2023
Exhibit-P4	A TRUE COPY OF THE AGREEMENT FOR SALE DATED 05/04/2023
Exhibit-P5	A TRUE COPY OF THE COMMUNICATION DATED 26/04/2023 ADDRESSED TO THE 1ST RESPONDENT BANK
Exhibit-P6	A TRUE COPY OF THE LETTER DATED 27/04/2023 SUBMITTED BY THE 1ST PETITIONER BEFORE THE 2ND RESPONDENT
Exhibit-P7	A TRUE COPY OF THE EMAIL REPLY DATED 28/04/2023 ISSUED BY THE 1ST RESPONDENT BANK
Paper X	Email communication sent by the Federal Bank

M/S. Powerplus Power Unit, v. Indusind Bank

Case brief

What is this about?

What did the court decide?

M/S. Powerplus Power Unit, v. Indusind Bank

Case brief

What is this about?

What did the court decide?

What the court decided

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