Kerala High Court
Smt. Bushara Aseez vs The Authorised Officer on 11 April, 2024
Author: N.Nagaresh
Bench: N.Nagaresh
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE N.NAGARESH
THURSDAY, THE 11TH DAY OF APRIL 2024/22ND CHAITHRA, 1946
WP(C) NO. 6818 OF 2024
PETITIONER:
BUSHARA ASEEZ
AGED 43 YEARS
W/O. ASEEZ THARAVATTATH,
THARAVATTATH HOUSE,
THIRUVALLUR P.O., VATAKARA,
KOZHIKODE-, PIN - 673541
BY ADVS.
TERRY V.JAMES
ABRAHAM KOLLINAL
RAKHY BABY
RESPONDENTS:
1 THE AUTHORISED OFFICER
[UNDER THE SECURITISATION AND RECONSTRUCTION OF
FINANCIAL ASSETS AND ENFORCEMENT OF SECURITY
INTEREST ACT, 2002] SOUTH INDIAN BANK, REGIONAL
OFFICE KOZHIKODE, 1ST FLOOR, HAPPY TOWERS,
VAIKKOM MOHAMMED BASHEER ROAD, MANANCHIRA(PO),
KOZHIKODE-., PIN - 673001
2 THE SENIOR MANAGER
SOUTH INDIAN BANK, VATAKARA BRANCH,
ARKAY BUILDING, NEAR HOP EDODI,
VATAKARA, KOZHIKODE, PIN - 673101
3 THE BRANCH MANAGER
SOUTH INDIAN BANK, VATAKARA BRANCH,
ARKAY BUILDING, NEAR HOP EDODI,
VATAKARA, KOZHIKODE-, PIN - 673101
BY SRI.P.A.AUGUSTINE
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 11.04.2024, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
W.P.(C) No.6818/2024
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N. NAGARESH, J.
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W.P.(C) No.6818 of 2024
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Dated this the 11th day of April, 2024
JUDGMENT
~~~~~~~~~ The petitioner, who has borrowed a Term Loan of ₹10 lakhs and an Overdraft facility of ₹10 lakhs from the South Indian Bank, seeks to direct the respondents to regularise/renew the Overdraft facility and to direct the respondents to permit the petitioner to clear outstanding amounts due in 24 equal monthly instalments.
2. The petitioner and her husband availed a Term Loan of ₹10 lakhs in the year 2017 and an Overdraft facility of ₹10 lakhs in the year 2018. Residential house owned by the petitioner situated in 11.11 Ares of land in Thiruvalloor Village was mortgaged as security.
W.P.(C) No.6818/2024:3:
3. The petitioner states that the Covid-19 pandemic adversely affected the business of the husband of the petitioner and the loan accounts fell into arrears.
4. The respondents classified the loan accounts as NPA and issued Ext.P2 recall notice on 13.04.2021 demanding payment of ₹21,99,909.35. Ext.P3 Section 13(2) notice was issued on 13.07.2021 demanding ₹22,68,086.51. The petitioner states that after receipt of Ext.P3 notice, about ₹2,06,500/- was remitted by the husband of the petitioner. An amount of ₹50,000/- was again paid on 03.01.2023. Without crediting the amounts remitted by the petitioner and her husband, the 1st respondent has issued Ext.P6 sale notice.
5. The petitioner thereupon filed W.P.(C) No.12098/2023. The petitioner remitted ₹4 lakhs pursuant to the directions of this Court. However, the 2 nd respondent as per Ext.P10 letter dated 09.05.2023 rejected the request for payment in instalments. The 2nd respondent directed that the Overdraft facility should be closed before 31.05.2023. W.P.(C) No.6818/2024 :4:
6. The petitioner therefore again approached this Court filing W.P.(C) No.16463/2023. The said writ petition was dismissed by this Court as per Ext.P11 judgment. On 16.08.2023, pursuant to an order of the Chief Judicial Magistrate's Court, Kozhikode, an Advocate Commissioner issued notice to the petitioner threatening taking over of physical possession of the mortgaged property. Though the petitioner filed SA No.477/2023 challenging Ext.P12 notice, the Debts Recovery Tribunal, by Ext.P15 order dated 05.02.2024, dismissed the SA. Hence, the petitioner is before this Court.
7. The petitioner states that Exts.P3 and P6 notices are issued in violation of the provisions of the SARFAESI Act. The respondents omitted to consider the fact that the petitioner is willing to pay off the overdues within a reasonable time. The respondents have not made any valuation of the mortgaged property before putting the property to sale as per Ext.P6. The petitioner therefore seeks to direct the respondents to regularise the Overdraft W.P.(C) No.6818/2024 :5: facility and to permit the petitioner to clear the outstanding in instalments.
8. Standing Counsel entered appearance and resisted the writ petition on behalf of the respondents. The petitioner's husband consistently defaulted in making remittances. The petitioner earlier approached this Court filing W.P.(C) No.12098/2023. This Court directed the petitioner to pay an amount of ₹4 lakhs on or before 30.04.2023 and approach the Bank with a proposal for repaying of the balance amount. However, the petitioner did not pay any amount thereafter.
9. The petitioner later filed W.P.(C) No.16463/2023. This Court considered the case of the petitioner and declined to interfere in the matter. The writ petition was dismissed as per Ext.P11 judgment. The intention of the petitioner is to delay and defeat the process of the Bank for recovery of dues. The writ petition is therefore liable to be dismissed, contended the Standing Counsel.
W.P.(C) No.6818/2024:6:
10. I have heard the learned counsel for the petitioner and the learned Standing Counsel representing the respondents.
11. Against the Overdraft facility availed by the petitioner of ₹10 lakhs in the yer 2017, the outstanding amount payable by the petitioner is ₹11,98,011/- as on 20.02.2024 which exceeds the OD limit. Against the mortgage loan of ₹10 lakhs availed by the Bank in the year 2019, there is an outstanding of ₹9,33,271/-.
12. The petitioner had approached this Court earlier twice and this Court declined to interfere in the matter in W.P.(C) No.16463/2023. The petitioner has approached the Debts Recovery Tribunal filing SA No.477/2023. The SA was dismissed as per Ext.P15 order. Against Ext.P15 order, the petitioner has an alternate remedy to approach the Debts Recovery Appellate Tribunal under Section 18 of the SARFAESI Act.
13. In the facts of the case, I do not find any reason to interfere with the matter in exercise of the powers under W.P.(C) No.6818/2024 :7: Article 226 of the Constitution of India.
The writ petition is therefore dismissed.
Sd/-
N. NAGARESH, JUDGE aks/06.04.2024 W.P.(C) No.6818/2024 :8: APPENDIX OF WP(C) 6818/2024 PETITIONER'S EXHIBITS Exhibit P1 TRUE COPY OF NOTICE DATED 25.3.2021 ISSUED BY THE 3RD RESPONDENT TO THE PETITIONER/HUSBAND.
Exhibit P2 TRUE COPY OF RECALL NOTICE DATED 13.4.2021 SENT BY THE 3RD RESPONDENT TO THE PETITIONER AND HER HUSBAND.
Exhibit P3 TRUE COPY OF NOTICE DATED 13.7.2021 SENT BY THE 1ST RESPONDENT UNDER SECTION 13(2) OF THE SARFAESI ACT TO THE PETITIONER AND HER HUSBAND.
Exhibit P4 TRUE COPY OF CHALLAN EVIDENCING PAYMENT OF RS. 13,000/-RS. 87,000/-, RS. 30,000/-, RS. 13,000/-, RS.
38,700/- AND RS. 24,800/- MADE BY THE PETITIONER/HUSBAND TO THE RESPONDENT BANK.
Exhibit P5 TRUE COPY OF POSSESSION NOTICE DATED 15.3.2022 SENT BY THE 1ST RESPONDENT TO THE PETITIONER.
Exhibit P6 TRUE COPY OF SALE NOTICE DATED 24.11.2022 ISSUED BY THE 1ST RESPONDENT TO THE PETITIONER AND HER HUSBAND.
Exhibit P7 TRUE COPY OF JUDGMENT DATED 5.4.2023
OF THIS HON'BLE COURT IN W.P.(C)
12098/2023
Exhibit P8 TRUE COPY OF LETTER DATED 28.4.2023 OF
THE PETITIONER'S HUSBAND ISSUED
THROUGH THE PETITIONER TO THE 3RD
RESPONDENT.
Exhibit P9 TRUE COPY OF TERM LOAN PASS SHEET OF
THE PETITIONER ISSUED BY THE
RESPONDENT BANK FOR THE PERIOD
4.11.2017 TO 21/5/2023.
Exhibit P10 TRUE COPY OF LETTER DATED 9.5.2023
SENT BY THE 2ND RESPONDENT TO THE
PETITIONER
Exhibit P11 TRUE COPY OF THE JUDGEMENT DATED
24/5/2023 IN WPC 16463/2023
W.P.(C) No.6818/2024
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Exhibit P12 TRUE COPY OF THE NOTICE OF THE
ADVOCATE COMMISSIONER NOTICE DATED 16/8/2023 Exhibit P13 TRUE COPY OF THE SA NO 447/2023 FILED BY THE PETITIONER BEFORE THE DRT ERNAKULAM WITHOUT ANNEXURES Exhibit P14 TRUE COPY OF THE WRITTEN STATEMENRT FILED BY THE RESPONDENTS IN SA 447/2023 WITHOUT ANNEXURES Exhibit P15 TRUE COPY OF THE ORDER DATED 5/2/2024 IN SA 447/2023 DRT ERNAKULAM