K.N.Unnikrishna Pillai vs The Manager
2021 Latest Caselaw 6015 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM

                               PRESENT

                 THE HONOURABLE MR. JUSTICE A.M.BADAR

     FRIDAY, THE 19TH DAY OF FEBRUARY 2021 / 30TH MAGHA,1942

                       WP(C).No.4406 OF 2021(A)


PETITIONER:

               K.N.UNNIKRISHNA PILLAI, AGED 52 YEARS,
               S/O. NEELAKANTA KURUP, PRANAVAM HOSUE, MULAPUZHA,
               PANDALAM P.O., PATHANAMTHITTA, PIN-689 501
               REPRESENTED BY HIS POWER OF ATTORNEY HOLDER GOPAKUMAR
               B.NAIR, AGED 57 YEARS, S/O. THE LATE N.BALAKRISHNAN
               NAIR, 5A, SKYLINE PLAZA APARTMENTS,
               VELLAYAMBALAM P.O., THIRUVANANTHAPURAM, PIN-695 010.

               BY ADVS.
               SRI.C.S.MANU
               SRI.T.B.SIVAPRASAD
               SRI.C.A.ANUPAMAN
               SRI.C.Y.VIJAY KUMAR
               SRI.E.R.MANJU
               SRI.SANANDHU SATHEESH
               SRI.ALINT JOSEPH

RESPONDENTS:

      1        THE MANAGER
               HDFC LTD., MAVELIKKARA BRANCH, ALAPPUZHA DISTRICT,
               PIN-690 101.

      2        THE AUTHORISED OFFICER
               HDFC LTD., HDFC HOUSE, P.B.NO.2288, VAZHUTHACAUD,
               THIRUVANANTHAPURAM, PIN-695 010.


OTHER PRESENT:

               SRI. K.K.CHANDRAN PILLAI(SR.),SC.
               SMT. S.AMBILY

     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
19.02.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 W.P.(C) No.4406/2021                  2


                               JUDGMENT

Dated this the 19th day of February 2021

By this writ petition, the petitioner seeks the following reliefs:

(i) Issue a writ of certiorari or any other appropriate writ, order or direction, calling for the records leading to Ext.P12 notice issued by the Advocate Commissioner and quash Ext.P12.

(ii) Issue a writ of mandamus, or any other appropriate writ, order or direction restraining the respondents from taking any coercive proceedings against the petitioner in respect of loan accounts nos.630119786 and 630784162 covered by Exts.P3 and P4.

(iii) Issue a writ of mandamus, or any other appropriate writ, order directing the respondents to consider Ext.P13 representation to re-structure and regularise the loan as per law and prevailing banking regulations applicable to HDFC Limited with a lenient view.

The petitioner also sought for an interim relief to stay all further

proceedings pursuant to Ext.P12 notice pending disposal of the

writ petition.

2. Heard the learned counsel for the petitioner at sufficient

length of time. Learned counsel for the petitioner drew my

attention to the judgment dated 08.01.2020 in W.P(C) No.34584 of

2019 filed by the petitioner. It is submitted that the petitioner was

directed by that judgment to clear the entire overdue amount in

four equal monthly instalments ending by the end of April 2020.

He argued that the petitioner could not comply this judgment

because of pandemic Covid-19. It is also argued that the

petitioner has preferred a representation at Ext.P13 on 28.10.2020

to respondents for regularising his loan account in six instalments

and had paid three instalments in pursuant to his representation.

The said representation, according to the learned counsel for the

petitioner, is not considered by the respondents. It is further

argued that the petitioner is willing to clear the overdue amount in

instalments. Relying on the orders of this Court at Exts.P6 and

P11, learned counsel argued that the respondents ought not to

have taken any action as interim orders are continued from time to

time.

3. Learned Standing Counsel appearing for respondents

argued that in pursuant to the judgment, Ext.P5, in

W.P.(C) No.34584 of 2019, the petitioner has not paid a single

instalment and as such, now he is estopped from seeking any relief

in the matter of loan taken by him and the action taken by the

secured creditor under the SARFAESI Act. Learned Standing

Counsel drew my attention to clause (iv) of the operative portion

of the judgment which reads thus:

"(iv) On the other hand, if the petitioner commits default of any one of the instalments, then the benefit of the above said directions will stand automatically vacated without any further orders of this Court, in which case, the respondent will be at liberty to proceed further with the impugned steps from the stage where it has stopped. In such an eventuality it is also ordered that the petitioner will have to give up all his contentions that are otherwise available to him to be raised in appropriate proceedings before the competent fora".

With the aid of the above clause, learned Standing Counsel

argued that, now the petitioner is not entitled for any relief as per

the directions of this Court. It is further argued that in the

year 2018, the petitioner had taken two loans; one was for

Rs.50 lakhs and another for Rs.3,30,408/-. The purpose for

obtaining these loans was to construct a Villa and now, according

to learned Standing Counsel, the petitioner is not constructing that

Villa. As of now, according to the learned Standing Counsel, the

overdue amount of loan is Rs.19,74,088/- .

4. I have considered the submissions so advanced and

perused the materials placed before me. In fact the fate of the

petitioner is sealed by the judgment of this Court in W.P.(C)

No.34584 of 2019. This Court, in the case of the petitioner, has

categorically held that in case the directions given by the Court in

favour of the petitioner for regularising his loan account are not

complied by the petitioner, then the petitioner will have to give up

all his contentions that were otherwise available to him, to be

raised in appropriate proceedings before competent forum.

Undisputedly, the petitioner has not complained the earlier

judgment passed by this Court which was in fact in his favour.

Subsequently also there was no attempt on the part of the

petitioner to regularise his loan account except representation at

Ext.P13 and few payments made in the light of that

representation. The total arrears reported by the learned Standing

Counsel appearing for respondents as on date is Rs.19,74,088/-.

That is how respondents have proceeded under the SARFAESI Act

and issued notice for recalling the loan. This has culminated into

appointment of a Court Commissioner by the learned Chief Judicial

Magistrate as per the provisions of Section 14 of the SARFAESI

Act for taking possession of the secured asset.

In the light of the foregoing discussions, no case for

interference is made out. This writ petition is therefore dismissed.

Sd/-

A.M.BADAR

JUDGE

smp

APPENDIX PETITIONER'S EXHIBITS:

EXHIBIT P1 TRUE COPY OF THE REPRESENTATION DATED 30.11.2019 SUBMITTED BY THE PETITIONER TO THE RESPONDENTS.

EXHIBIT P2 TRUE COPY OF THE ORDER DATED 18.11.2019 ON THE FILE OF THE CHIEF JUDICIAL MAGISTRATE'S COURT.

EXHIBIT P3 TRUE COPY OF THE DEMAND NOTICE DATED 12.6.2019 ISSUED BY THE IST RESPONDENT TO THE PETITIONER IN RESPECT OF LOAN ACCOUNT NO.630119786.

EXHIBIT P4 TRUE COPY OF THE DEMAND NOTICE DATED 12.6.2019 ISSUED BY THE IST RESPONDENT TO THE PETITIONER, IN RESPECT OF LOAN ACCOUNT NO.630784162.

EXHIBIT P5 TRUE COPY OF JUDGMENT DATED 8.1.2020 IN WPC 34584 OF 2019 PASSED BY THIS HON'BLE HIGH COURT.

EXHIBIT P6 TRUE COPY OF THE ORDER DATED 25.3.2020 IN WP(C) NO.9400 OF 2020 PASSED BY THE FULL BENCH OF THIS HON'BLE COURT.

EXHIBIT P7 TRUE COPY OF THE ORDER DATED 30.3.2020 IN WPC NO.9400 OF 2020 PASSED BY THE FULL BENCH OF THIS HON'BLE COURT.

EXHIBIT P8 TRUE COPY OF THE ORDER DATED 18.5.2020 IN WPC NO.9400 OF 2020 PASSED BY THE FULL BENCH OF THIS HON'BLE COURT.

EXHIBIT P9 TRUE COPY OF THE ORDER DATED 26.5.2020 IN WPC NO.9400 OF 2020 PASSED BY THE FULL BENCH OF THIS HON'BLE COURT.

EXHIBIT P10 TRUE COPY OF THE ORDER DATED 3.8.200 IN WPC NO.9400 OF 2020 PASSED BY THE FULL BENCH OF THIS HON'BLE COURT.

EXHIBIT P11 TRUE COPY OF THE ORDER DATED 7.9.2020 IN WPC NO.9400 OF 2020 PASSED BY THE FULL BENCH OF THIS HON'BLE COURT.

EXHIBIT P12 TRUE COPY OF NOTICE DATED 9.2.2021 ISSUED BY NISHI S. ADVOCATE COMMISSIONER ADDRESSED TO THE STATION HOUSE OFFICER, MEDICAL COLLEGE POLICE STATION AND COPIES TO THE PETITIONER AND THE AUTHORISED OFFICER, HDFC LIMITED.

EXHIBIT P13 TRUE COPY OF REPRESENTATION DATED 28.10.2020 SUBMITTED BY THE PETITIONER THOUGH HIS POWER HOLDER GOPAKUMAR B. NAIR.

EXHIBIT P14 TRUE COPY OF THE CERTIFICATE DATED NIL ISSUED BY THE KERALA BANK TO THE PETITIONER.

RESPONDENTS' EXHIBITS: NIL.

True Copy

P.S to Judge

smp