IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE N.NAGARESH
FRIDAY, THE 24TH DAY OF JUNE 2022 / 3RD ASHADHA, 1944
WP(C) NO. 17006 OF 2022
PETITIONER:
EBY ELDHOSE
AGED 37 YEARS
S/O ELDHOSE, VANDANATHU HOUSE,
KOOVALOOR P.O., POTHANIKKAD,
ERNAKULAM DISTRICT, PIN - 686671.
BY ADV BIJIMON C.CHERIAN
RESPONDENTS:
1 STATE BANK OF INDIA
STRESSED ASSETS RECOVERY BRANCH, 7TH FLOOR,
VANKAARATH TOWERS, EDAPPALLY-PALARIVATTOM,
BYPASS JUNCTION, PALARIVATTOM,
ERNAKULAM - 682024,
REP. BY ITS AUTHORIZED OFFICER.
2 STATE BANK OF INIDA
POTHANIKAD BRANCH, REPRESENTED BY CHIEF
MANAGER, (MAINTENANCE) RETAIL ASSETS SMALL &
MEDIUM ENTERPRISES CENTER (RASMEC), PEARL
TOWER, VELLOORKUNNAM, MARKET P. O.,
MUVATTUPUZHA, ERNAKULAM DISTRICT, PIN - 686673.
BY ADV M.JITHESH MENON
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 24.06.2022, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
W.P.(C) No.17006/2022
:2:
N. NAGARESH, J.
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W.P.(C) No.17006 of 2022
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Dated this the 24th day of June, 2022
JUDGMENT
~~~~~~~~~ The petitioner, who has availed a housing loan of ₹20 lakhs from the 2nd respondent-Bank, is before this Court seeking to keep all further proceedings in Ext.P1 notice in abeyance and to command the respondents to regularise the loan account of the petitioner by remitting the overdue amount by instalments, within a time limit that may be fixed by this Court.
2. The petitioner states that he has availed a housing loan of ₹20 lakhs from the 2nd respondent for constructing a residential building, on 24.11.2015. The loan was to be paid in 360 monthly instalments of ₹17,512/-. The petitioner has been promptly paying the equated monthly instalments till W.P.(C) No.17006/2022 :3: March, 2020. Due to Covid-19 pandemic and financial constraints resulting therefrom, the petitioner was forced to commit default in paying the monthly instalments. The respondents thereupon initiated proceedings under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 and issued Ext.P1 notice dated 02.05.2019 under Section 13(2). The petitioner was required to remit the outstanding of ₹22,21,492/-.
3. The petitioner thereupon approached the respondents and expressed his willingness to regularise the loan. However, the request of the petitioner remained unheeded. Instead, the respondents approached the Chief Judicial Magistrate's Court, Ernakulam filing MC No.45 of 2020 invoking Section 14 of the Act, 2002. The Chief Judicial Magistrate issued Ext.P3 order in MC No.45 of 2020 appointing an Advocate Commissioner to take physical possession of the property of the petitioner, given as security.
W.P.(C) No.17006/2022 :4:
4. On 12.03.2020, the petitioner remitted ₹1,00,000/- towards repayment. On 06.05.2022, the petitioner remitted a further sum of ₹2,60,000/-. The petitioner states that he is ready and willing to clear the arrears of the loan, provided he is given sufficient time to repay the amount in instalments. The impugned action of the respondents in taking possession of the property of the petitioner under the SARFAESI Act is illegal, fraudulent, invalid and void, contends the petitioner.
5. Standing Counsel entered appearance on behalf of the respondents and contested the writ petition filing statement dated 15.06.2022. The respondents stated that in spite of the repeated requests made by the respondents, the petitioner did not clear the dues. The respondents had entered into a compromise with the petitioner for settling the account on payment of ₹25,00,000/- which had to be remitted within a period of four months. The petitioner, without adhering to the said compromise, has approached this Court. The writ petition is therefore liable to be W.P.(C) No.17006/2022 :5: dismissed, contended the Standing Counsel for the respondents.
6. I have heard the learned counsel for the petitioner and the learned Standing Counsel representing the respondents.
7. The pleadings in the writ petition and arguments raised at the Bar disclose that the petitioner availed loan of ₹20 lakhs in the month of November, 2015. The petitioner has been remitting the Equated Monthly Instalments regularly during the initial years. Due to Covid-19 pandemic and consequential financial distress, the repayment fell into arrears. The respondents initiated proceedings under the SARFAESI Act and took over the possession of the building given as security by the petitioner. As on 06.05.2022, the total outstanding from the petitioner is about ₹26.51 lakhs.
8. Taking into consideration the fact that the loan involved is a housing loan and the fact that the petitioner has been remitting the EMI's regularly during the initial duration of the loan, this Court is inclined to grant the petitioner W.P.(C) No.17006/2022 :6: opportunity to repay the entire amount outstanding to the respondent-Bank, in instalments.
9. The writ petition is therefore disposed of with the following directions:
(i) The petitioner shall repay the entire outstanding amount due to the Bank along with accruing interest and other charges, if any, in 12 equal monthly instalments.
(ii) The first of such instalments shall be paid on or before 31.07.2022 and the remaining instalments in ensuing consecutive months.
(iii) If the petitioner commits any default in paying the instalments as directed above, the respondents will be free to proceed against the petitioner in accordance with law.
(iv) If the petitioner makes repayment as directed above, Ext.P1 and all other coercive proceedings against the petitioner and his sureties, shall stand deferred.
Sd/-
N. NAGARESH, JUDGE aks/27.06.2022 W.P.(C) No.17006/2022 :7: APPENDIX OF WP(C) 17006/2022 PETITIONER'S EXHIBITS Exhibit P1 TRUE COPY OF 13 (2) NOTICE ISSUED TO THE PETITIONER BY THE SECOND RESPONDENT.
Exhibit P2 TRUE COPY OF M.C 45/2020 FILED BEFORE THE CHIEF JUDICIAL MAGISTRATE COURT ERNAKULAM.
Exhibit P3 TRUE COPY OF ORDER IN M.C 45/2020 APPOINTING THE ADVOCATE COMMISSIONER.
Exhibit P4 TRUE COPY OF THE PAYMENT SLIP ISSUED
TO THE PETITIONER BY THE FIRST
RESPONDENT EVIDENCING PAYMENT OF
RS.1,00,000/- IN THE LOAN ACCOUNT.Exhibit P5 TRUE COPY OF THE PAYMENT SLIP ISSUED
TO THE PETITIONER BY THE FIRST
RESPONDENT EVIDENCING PAYMENT OF
RS.2,60,000/- IN THE LOAN ACCOUNT.
Exhibit P6 TRUE COPY OF ORDER DATED 07-05-2022 PASSED IN C.M.P NO: 1437/2022 IN M.C 45/2020.
RESPONDENT'S EXTS:
R1(A) COPY OF REQUEST SUBMITTED BY THE PETITIONER'S FATHER.
R1(B) COPY OF OFFER FOR ONE TIME SETTLEMENT BY THE PETITIONER'S FATHER.
R1(C) COPY OF REQUEST/LETTER SUBMITTED BY THE PETITIONER DT 9.5.2022.
R1(D) COPY OF COMPROMISE SANCTIONED BY THE RESPONDENTS DT 12.5.2022.