IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE N.NAGARESH
THURSDAY, THE 9TH DAY OF JUNE 2022 / 19TH JYAISHTA, 1944
WP(C) NO. 15016 OF 2022
PETITIONER
DEVASIACHAN.T.M
AGED 66 YEARS
S/O. MATHAI, THATTAMPARAMBIL HOUSE, ARUVITHURA
P.O., ERATTUPETTA, KOTTAYAM-686122.
BY ADV SMT.MOLY.E.V., CGC
RESPONDENT
STATE BANK OF INDIA
STRESSED ASSETS RECOVERY BRANCH, PALARIVATTOM
BRANCH, 7TH FLOOR, VANKARATH TOWERS, BYE-PASS
JUNCTION, PALARIVATTOM, ERNAKULAM-682024, REP.
BY ITS AUTHORIZED OFFICER.
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 09.06.2022, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
W.P.(C) No. 15016 of 2022 :2:
JUDGMENT
Dated this the 9th day of June, 2022 The petitioner is aggrieved by the coercive measures initiated by the respondent-Bank to recover the amounts from the petitioner. The petitioner seeks direction to the respondent to regularise the loan account.
2. The petitioner states that he is the guarantor and also the Power of Attorney holder of the borrower, who is his daughter. His daughter availed a loan of Rs.12,05,700/- from the respondent-Bank. The loan was availed in the year 2009. The loan repayment was promptly made during the initial years. However, subsequently, due to the reasons beyond the control of the petitioner or the petitioner's daughter, the EMIs could not be paid. Now, the respondent has initiated coercive proceedings invoking the provisions of the SARFAESI Act. A possession notice has been issued as per Ext.P2.
W.P.(C) No. 15016 of 2022 :3:
3. The petitioner states that the proposed SARFAESI proceedings invoked against the mortgaged property of the petitioner is unsustainable. The respondent ought to have taken into consideration the repayment promptly made by the petitioner's daughter upto the period of Covid-19 pandemic. If the petitioner's daughter is given 20 months' time to pay the outstanding amount in equal monthly instalments, the entire dues can be cleared. In the facts of the case, the respondent is compellable to desist from any proceedings initiated as per Ext.P3.
4. The Standing Counsel appeared on behalf of the respondent and contested the writ petition.
5. The Standing Counsel controverted all material allegations made by the petitioner in the writ petition. It was submitted that Rs.34,80,373.33 was the total outstanding from the borrower as on 31.03.2022. The petitioner's daughter committed consistent defaults and the respondent W.P.(C) No. 15016 of 2022 :4: had no other go than to initiate proceedings under the SARFAESI Act. It was in such circumstances that Ext.P2 possession notice was issued. The petitioner can very well challenge Ext.P2 notice before the DRT. If the borrower can repay the amount within a limited period in instalments, the petitioner's request can be considered.
6. I have heard the learned counsel for the petitioner and the learned Standing Counsel representing the respondent.
7. The fact that the petitioner's daughter had taken a loan of Rs.12,05,700/- in the year 2009 is not in dispute. The petitioner's daughter had paid the instalments at the initial stage. Subsequently, due to Covid-19, the petitioner's daughter could not remit the instalments. Now, the respondent has initiated coercive proceedings as per Ext.P1.
8. The petitioner would submit that if sufficient time is given, the entire outstanding amount can be cleared. In the facts and circumstances of the case, this Court is of the view W.P.(C) No. 15016 of 2022 :5: that a breathing time should be granted to the petitioner and his daughter to clear the dues.
9. In the circumstances of the case, the writ petition is disposed of with the following directions:
(1) The petitioner shall remit the entire outstanding amount along with accrued interest and other charges, if any, in 12 equal monthly instalments. The payment of the instalment should be commenced by making remittance on 25.07.2022 and subsequent 11 instalments should be made in consecutive months thereafter.
(2) If the petitioner commits any default in making the remittances as directed above, the respondent will be at liberty to proceed against the secured properties, in accordance with law. (3) If the petitioner is making the repayment as directed above, the respondent shall defer coercive proceedings proposed as per Ext.P3. W.P.(C) No. 15016 of 2022 :6: (4) In the meanwhile, If a One Time Settlement Scheme of the Bank is available, the petitioner will be at liberty to approach the Bank Sd/-
N. NAGARESH, JUDGE smm/14.06.2022 W.P.(C) No. 15016 of 2022 :7: APPENDIX OF WP(C) 15016/2022 PETITIONER EXHIBITS Exhibit P1 THE TRUE COPY OF THE DEMAND NOTICE DATED 8.11.2017 ISSUED BY THE RESPONDENT BANK.
Exhibit P2 THE TRUE COPY OF THE POSSESSION NOTICE DATED 31.3.2022 ISSUED BY THE RESPONDENT BANK.