IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE N.NAGARESH
FRIDAY, THE 1ST DAY OF JULY 2022 / 10TH ASHADHA, 1944
WP(C) NO. 21492 OF 2022
PETITIONER/S:
1 RADHIKA P.K,
AGED 45 YEARS
W/O HARIKUMAR C.K
PADINJAREKKATTU HOUSE,
KULAKKAD,THIRUVALLA P.O
PATHANAMTHITTA PIN-689101,
2 HARIKUMAR C.K,
S/O KUNJUNJU, PADINJAREKKATTU HOUSE, KULAKKAD,
THIRUVALLA P.O PATHANAMTHITTA PIN 689101,
BY ADVS.
MANSOOR.B.H.
SAKEENA BEEGUM
RESPONDENT
THE AUTHORISED OFFICER
STATE BANK OF INDIA, SARC, LMS COMPOUND,
OPPOSITE MUSEUM WEST GATE, VIKAS BHAVAN,
THIRUVANANTHAPURAM-695 033.
SRI.M.JITHESH MENON (SC) -R1
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 01.07.2022, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
W.P(C) No.21492 of 2022 :2:
JUDGMENT
Dated this the 1st day of July, 2022 The petitioners, who have availed a housing loan from the State Bank of India, are before this Court seeking to direct the respondent to permit the petitioners to clear the overdue amounts in 12 equal monthly instalments and to regularise the loan account and to keep in abeyance further proceedings.
2. The petitioners state that they had availed a housing loan for construction of a residential building. The loan amount was ₹20 lakhs and the petitioners have repayment period of 20 years. The petitioners have been remitting Equated Monthly Instalments promptly. Due to Covid-19 pandemic and subsequent financial distress, certain EMIs were defaulted. The respondent thereupon initiated coercive proceedings against the petitioners under the SARFAESI Act and now Ext.P1 notice has been issued by the Advocate W.P(C) No.21492 of 2022 :3: Commissioner in M.C.No.41/2022, which requires the petitioners to vacate the mortgaged premises and handover its vacant possession.
3. The petitioners stated that the petitioners' family consists of aged parents and children and the family is in thick financial difficulties. The loan repayment was defaulted for reasons beyond the control of the petitioners. The petitioners have already remitted substantial amounts towards loan. In the circumstances, if the petitioners are ousted from their residential premises, they will be put to untold hardship and loss.
4. The Standing Counsel entered appearance on behalf of the respondent and resisted the writ petition. It was submitted on behalf of the respondent that the petitioners have been making persistent default in making payment of Equated Monthly Instalments. In spite of repeated requests of the respondent, the petitioners did not care to clear the overdue amount. In such circumstances, the Bank was W.P(C) No.21492 of 2022 :4: forced to take coercive proceedings under the SARFAESI Act.
5. Now, as stated by the petitioners themselves, O.A.No. 44 of 2022 is pending before the DRT-2, Ernakulam. An amount of Rs.24,50,114/- is due from the petitioners as on 01.07.2022. Since the Bank has recalled the loan and the proceedings are pending before the DRT, there is no question of regularising the loan of the petitioners. However, if the petitioners remit the entire outstanding arrears in a short period, coercive proceedings can be deferred for the time being.
6. I have heard the learned counsel for the petitioners and the learned Standing Counsel for the respondent-Bank.
7. It is discernible from the proceedings that the loan amount is ₹20 lakhs. It is a housing loan. According to the petitioners, they have availed loan in the year 2017 and they have 20 years as repayment period. It is only due to financial distress of the petitioners due to Covid-19 pandemic, which W.P(C) No.21492 of 2022 :5: was beyond their control, that the EMIs were defaulted. However, this Court finds that the respondent-Bank had recalled the loan and O.A.No.44 of 2022 is pending before the DRT.
8. In such circumstances, there is no question of regularising the loan account. However, taking into consideration the peculiar facts and circumstances of the case, this Court is of the view that the petitioners should be granted a reasonable opportunity to pay off the entire outstanding liabilities in instalments, before they are ousted from their residential premises.
8. The writ petition is therefore disposed of with the following directions:
1) The petitioners shall clear the entire outstanding dues to the respondent-Bank along with accruing interest and other charges, if any, in 10 equal monthly instalments.
2) The first of such instalment shall be paid on or before 01.08.2022 and subsequent 9 instalments should be W.P(C) No.21492 of 2022 :6: made in consecutive months thereafter.
3) If the petitioners commit any default in remitting the instalments as directed above, the respondent-Bank will be at liberty to proceed against the petitioners, in accordance with law.
4) If the petitioners remit the instalments as directed above, Ext.P1 and all other coercive proceedings against the petitioners and their sureties shall stand deferred.
Sd/-
N. NAGARESH, JUDGE smm/05.07.2022 W.P(C) No.21492 of 2022 :7: APPENDIX OF WP(C) 21492/2022 PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE NOTICE ISSUED BY THE ADVOCATE COMMISSIONER IN MC 41/2022 OF CHIEF JUDICIAL MAGISTRATES COURT, PATHANAMTHITTA DATED 22.6.2022