Suresh A.S. vs Kerala State Co-Operative Bank ...
2021 Latest Caselaw 4200 Ker

                IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                PRESENT

                  THE HONOURABLE MR. JUSTICE A.M.BADAR

    THURSDAY, THE 04TH DAY OF FEBRUARY 2021 / 15TH MAGHA,1942

                        WP(C).No.1721 OF 2021(M)


PETITIONER/S:

                SURESH A.S., AGED 47 YEARS,
                S/O.SANKARAN, ALAPPATTU HOUSE, KOTHAMANGALAM P.O.,
                ERNAKULAM DISTRICT-686 691.

                BY ADV. SRI.P.K.SAJEEVAN

RESPONDENT/S:

                KERALA STATE CO-OPERATIVE BANK LIMITED,
                KOTHAMANGALAM TOWN EVENING BRANCH, 1ST FLOOR,
                GANDHI SQUARE SHOPPING COMPLEX, POST OFFICE JUNCTION,
                KOTHAMANGALAM-686691,
                REP BY ITS SECRETARY.

                R1 BY ADV. SRI.N.RAGHURAJ

     THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD            ON
04.02.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C).No.1721 OF 2021               2



                             JUDGMENT

Dated this the 4th day of February 2021

Heard both sides.

2. Learned counsel for the petitioner submitted that

petitioner had availed a loan from the respondent bank and term of

the loan was for eight years from 2015. The petitioner was regular

in paying the instalments of loan. He submitted that because of

serious ailments of the petitioner, some instalments were defaulted

and the petitioner approached this Court by filing W.P.(C).

No.10160/2018 and accordingly instalments were granted to the

petitioner. According to the learned counsel for petitioner, due to

illness of mother and loss of job, the petitioner could not repay the

balance amount of loan and the bank refused to regularise the loan

account. The petitioner is not in a position to repay the amount of

loan except by instalments. With this, it is argued by the learned

counsel appearing for the petitioner that the respondent has no

legal right to issue Ext.P3 notice, demanding outstanding amount

of loan. The petitioner needs to be granted instalments.

3. Learned Standing Counsel appearing for the respondent

bank submitted that the petition is not maintainable because on an

earlier occasion, discretionary relief was sought and the direction

given by this Court in that petition is not followed by the petitioner.

4. I have considered the submissions so advanced and also

perused the materials placed before me.

5. The petitioner had availed loan from the respondent

bank. It is seen that the entire loan was recalled by the

respondent bank by issuing notice under Section 13(2) of the

SARFAESI Act on 26.04.2017. The petitioner approached this

Court in the matter by filing W.P.(C). No.10160 of 2018, which

came to be decided on 02.04.2018. Following is the direction

given to the petitioner while disposing that petition:-

''The petitioner is permitted to pay the overdue amount in 10 equal monthly instalments. He is directed to pay the overdue amount along with the regular monthly instalments. If the petitioner commits default in remitting any of the instalments, the instalment facility will stand forfeited. Coercive steps shall not be initiated in the meanwhile.''

6. The petitioner has failed to abide by this direction given

by the Court while disposing of his earlier petition by granting him

facility of instalments for paying overdue amount of loan. Further

notice on Ext.P3, which is impugned in this petition makes it clear

that the petitioner has committed default in repayment of loan and

despite this notice at Ext.P3, the petitioner has not refunded the

amount of loan. Subsequent thereto, again notice dated

12.11.2020 (Ext.P4) came to be issued demanding the petitioner

to repay the amount of loan within seven days from the date of

receipt of notice.

7. It is thus clear that once relief in equity was sought by

the petitioner and he failed to comply with the direction given by

this Court in its petition. The respondent has already initiated

action under the SARFAESI Act for recovery of the amount of loan

advanced to the petitioner. As held by the Hon'ble Apex Court in

Authorized Officer, State Bank of Travancore and another

vs. Mathew K.C (2018(1) KLT 784), action taken by the secured

creditor under the SARFAESI Act cannot be impugned in by filing a

writ petition before this Court. Prayer clause made in this petition

makes it clear that the action take by the secured creditor under

the SARFAESI Act is impugned in this petition. In this view of the

matter, the writ petition is dismissed.

Sd/-

                                                A.M.BADAR
ajt                                                JUDGE





                            APPENDIX
PETITIONER'S/S EXHIBITS:

EXHIBIT P1              THE TRUE COPY OF THE NOTICE DATED
                        26.04.2017 WITH TRANSLATION

EXHIBIT P2              THE TRUE COPY OF THE JUDGMENT IN WRIT
                        PETITION NO.10160 OF 2018 DATED 2.4.2018

EXHIBIT P3              THE TRUE COPY OF THE SALE NOTICE DATED
                        17.11.2020 WITH TRANSLATION

EXHIBIT P4 -            THE TRUE COPY OF THE NOTICE DATED
                        12.11.2020 TO THE PETITIONER FOR THE DUE
                        AMOUNT OF RS.5,50,105/-