IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE GOPINATH P.
THURSDAY, THE 23RD DAY OF JUNE 2022 / 2ND ASHADHA, 1944
WP(C) NO. 2415 OF 2022
PETITIONER/S:
1 P.V.CHACKO,
AGED 81 YEARS
S/O. VARKEY RESIDING AT PUTHANAPRA HOUSE, KARINKUZHI,
VELLUR P.O., PAYANNUR, KANNUR 670 307.
2 SANEESH JAMES,
AGED 42 YEARS
S/O.P.V. CHACKO, RESIDING AT PUTHANAPRA HOUSE,
KARINKUZHI, VELLUR P.O., PAYANNUR, KANNUR 670 307.
3 JISHA K GEORGE,
AGED 36 YEARS
W/O. SANEESH JAMES,
RESIDING AT PUTHANAPRA HOUSE,
KARINKUZHI, VELLUR P.O., PAYANNUR, KANNUR 670 307.
BY ADV M.S.AMAL DHARSAN
RESPONDENT/S:
1 THE SOUTH INDIAN BANK LTD.
PAYYANUR BRANCH,
HARITHAM COMPLEX,
NR. MUKUNDA HOSPITAL, MAIN ROAD, PAYYANUR, KANNUR 670
307.
REPRESENTED BY BRANCH MANAGER.
2 THE AUTHORISED OFFICER,
THE SOUTH INDIAN BANK LTD,
REGIONAL OFFICE KANNUR, KVR TOWER, PAMPAN MADHAVAN
ROAD, KANNUR 670 002.
3 THE REGIONAL MANAGER,
THE SOUTH INDIAN BANK LTD, REGIONAL OFFICE, KANNUR, KVR
TOWER, PAMPAN MADHAVAN ROAD, KANNUR 670 002.
BY ADVS.
SUNIL SHANKER
KEVIN VARGHESE JACOB
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
23.06.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C) NO. 2415 OF 2022 2
JUDGMENT
Petitioners have approached this Court, being aggrieved by the proceedings against them under the provisions of the SARFAESI Act.
2. The primary contention raised by the learned counsel appearing for the petitioners is that the respondent bank had refused to extent benefit of restructuring/rescheduling which was available to the petitioners in terms of Ext.P3 guidelines issued by the Reserve Bank of India . It is submitted that the guidelines issued by the Reserve Bank of India are binding on the respondent bank. It is submitted that the failure of the respondent bank to consider the restructuring/rescheduling of the loan is arbitrary on account of the fact that till August 2021, the petitioners had diligently serviced the loan without any default.
3. Learned Standing Counsel appearing for the bank submits that all the benefits to which the petitioners were entitled, including the Emergency Credit Line Guarantee Scheme, introduced by the Government of India on account of the economic recession owing to Covid-19 pandemic, have WP(C) NO. 2415 OF 2022 3 been extended to the petitioners. It is submitted that the question as to whether the account should be permitted to be restructured/rescheduled is a commercial decision to be taken by the respondent bank and considering the fact that the bank was not satisfied with the proposal given by the petitioners, the rescheduling/restructuring was not allowed. It is also submitted that going by the law laid down in the judgment of the Hon'ble Supreme Court in Small Scale Industrial Manufactures Association V. Union of India [(2018) 8 SCC 511], in dealing with the action initiated by the banks and reliefs to be extended on account of economic recession owing to Covid-19 pandemic, it is observed as follows:-
''It is required to be noted that as such the bankers are commercial entities and since the customer profile, organisational structure and spread of each lending institution is widely different from others, each lending institution is best placed to assess the requirements of its customers and therefore, the discretion was left to the lending institutions concerned. Any borrowing arrangement is a commercial contract between the lender and borrower.
RBI and/or the Union of India can provide for broad guidelines while recommending to give the reliefs''
4. Learned counsel appearing for the petitioners submits that despite the petitioners going through severe financial crisis as well as other domestic problems which are highlighted in the writ petition, the respondent bank did not consider the request of the petitioners. It is submitted that the WP(C) NO. 2415 OF 2022 4 bank simply refused to consider the request of the petitioners and did not require the petitioners to submit any proposal or documents for the consideration of the proposal.
5. Having regard to the facts and circumstances of the case this writ petition will stand disposed of directing that if the petitioners submit a comprehensive proposal for rescheduling/restructuring before the 3 rd respondent, competent authority of the respondent bank shall take a decision on the same. The petitioners shall also make available to the bank any documents that the bank may require to consider the proposal to be submitted by the petitioners. The proposal shall be submitted before the 3 rd respondent on or before 30.06.2022. The petitioner shall, as a condition precedent for considering the application, pay an amount of Rs.5,00,000/- (Rupees five lakhs only) on or before 30.06.2022, another Rs.5,00,000/- (Rupees five lakhs only) on or before 10.07.2022 and a further sum of Rs.10,00,000/- (Rupees ten lakhs only) on or before 30.07.2022. It is made clear that if the proposal is not supported by the payment as aforesaid, the bank will be under no obligation to consider the restructuring/rescheduling proposal. Further coercive steps against the petitioners shall remain suspended till a decision is WP(C) NO. 2415 OF 2022 5 taken by the bank on restructuring/rescheduling proposal as above.
sd/-
GOPINATH P.
JUDGE ajt WP(C) NO. 2415 OF 2022 6 APPENDIX OF WP(C) 2415/2022 PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE RELEVANT PAGES OF THE PASSBOOK OF THE PETITIONERS LOAN ACCOUNTS. Exhibit P2 TRUE COPY OF THE DISCHARGE SUMMARY OF THE ASTER MIMS HOSPITAL DATED 28/04/2020.
Exhibit P3 TRUE COPY OF THE RBI CIRCULAR DATED 05/05/2021.
Exhibit P4 TRUE COPY OF THE LETTER AND EMAIL DATED 30/07/2021.
Exhibit P5 TRUE COPY OF THE MEDICAL RECORDS OF THE IST PETITIONER.
Exhibit P6 TRUE COPY OF THE DEATH CERTIFICATE OF THE IST PETITIONER WIFE.
Exhibit P7 TRUE COPY OF THE NOTICE NO.
RO/KNR/SAR/402/526/2021-22 DATED 12/11/2021.
Exhibit P8 TRUE COPY OF THE NOTICE NO.
RO/KNR/SAR/402/524/2021-22 DATED 12/11/2021.
Exhibit P9 TRUE COPY OF THE NOTICE NO.
RO/KNR/SAR/520/2021-22 DATED 11/11/2021.
Exhibit P10 TRUE COPY OF THE NOTICE NO.
RO/KNR/SAR/402/525/2021-22 DATED 12/11/2021.
Exhibit P11 TRUE COPY OF THE NOTICE NO.
RO/KNR/SAR/402/527/2021-22 DATED 12/11/2021. Exhibit P12 TRUE COPY OF THE RELEVANT PAGES OF THE ACCOUNT STATEMENT OF THE IST RESPONDENT BANK ACCOUNTS.