Shamsudeen Pekumthara vs The Nilambur Co-Operative Urban ...
2021 Latest Caselaw 6443 Ker

              IN THE HIGH COURT OF KERALA AT ERNAKULAM

                              PRESENT

                THE HONOURABLE MR. JUSTICE A.M.BADAR

   TUESDAY, THE 23RD DAY OF FEBRUARY 2021 / 4TH PHALGUNA, 1942

                      WP(C).No.4670 OF 2021(G)


PETITIONER:

              SHAMSUDEEN PEKUMTHARA,
              AGED 45 YEARS
              S/O.KOYA HAJI, RESIDING AT PEZHUMTHARA HOUSE,
              KALANKUNNU, KALIKAVU P.O., MALAPPURAM DISTRICT,
              REP.BY HIS WIFE AND POWER OF ATTORNEY HOLDER,
              SULAIKHA KUNDANCHOLA, RESIDING AT PEZHUMTHARA HOUSE,
              KAILKAVU P.O., MALAPPURAM DISTRICT PIN 676 525.

              BY ADVS.
              SRI.R.SURAJ KUMAR
              SRI.SUNIL J.CHAKKALACKAL
              SMT.ANJANA R.S.

RESPONDENT:

              THE NILAMBUR CO-OPERATIVE URBAN BANK LTD.,
              REP.BY ITS ASSISTANT GENERAL MANAGER (AUTHORIZED
              OFFICER), NILAMBUR P.O., PIN 679 329

              R1 BY ADV. SRI.DEVAPRASANTH.P.J.



              SC- SRI. DEVAPRASANTH.P.J

     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
23.02.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C).No.4670 OF 2021(G)

                                      2

                             JUDGMENT

Dated this the 23rd day of February 2021

By this petition, petitioner has prayed for permitting him to clear

the amount of loan availed from the respondent within a period of six

months by extending benefits of one time settlement scheme.

2. Heard the learned counsel for the petitioner. He argued that

though the petitioner had availed loan, the same was utilised by his

relative, Sri.Usman for the purpose of business. However, the said

Usman had not repaid the loan promptly. The learned counsel for the

petitioner further argued that the petitioner is not challenging the

action taken by the respondent under the SARFAESI Act, but he wants

to repay the amount in six instalments. Therefore, according to the

learned counsel for the petitioner, the petitioner to be granted six

instalments for refund of the loan.

3. The learned counsel for the respondent opposed the

petition by contending that it was in the year 2016 that the petitioner

had availed loan of Rs.20,00,000/- from the respondent. The term of

that loan is up to 31.03.2021. The learned counsel for the respondent

further argued that after taking loan from the respondent, the

petitioner till today, has not repaid a single pie for discharging his

liability. The possession of the secured asset was therefore taken by WP(C).No.4670 OF 2021(G)

the respondent in the year 2019 by issuing notice under Section 13(2)

of the SARFAESI Act and subsequently by taking further steps. The

learned counsel for the respondent further argued that thereafter, sale

notice was issued by following due process of law and sale is

scheduled to be held on 25.02.2021. Hence, according to the learned

counsel for the respondent, petitioner has approached this Court at

the fag end of the steps taken by the respondent under the SARFAESI

Act. She submits that as on date, the petitioner is liable to pay an

amount of Rs.38,75,719/- to the respondent.

4. These facts stated by the learned counsel for the

respondent are not disputed by the petitioner. The petitioner has not

came up with the concrete suggestion regarding deposit of the amount

due and payable to the respondent as against the financial assistance

availed by the petitioner. What is sought to be canvassed is willingness

on the part of the petitioner to clear the loan in six instalments.

5. The petitioner has not repaid a single pie to the respondent

after availing financial assistance from the respondent. The averment

made in the petition itself shows that the petitioner has received a

demand notice under Section 13(2) of the SARFAESI Act. Possession

of the property is to be taken on 25/02/2021. The petition itself makes

it clear that on 24/09/2019, the learned Chief Judicial Magistrate had WP(C).No.4670 OF 2021(G)

issued an order under Section 14 of the Securitization Act and Ext.P1

to the petition is the final order passed by the learned CJM on receipt

of the report of the Advocate Commissioner, on 24.09.2019. Thus,

there is nothing on record to tilt the balance of equity in favour of the

petitioner for granting him relief of instalments for clearing the amount

of loan or for directing the respondent to consider grant of benefit of

one time settlement scheme to the petitioner.

The petition is devoid of merit and as such, is rejected. However,

the petitioner is free to apply for the benefit of one time settlement

scheme with the respondent.

Sd/-

A.M.BADAR Nsd //true copy// JUDGE PA to Judge WP(C).No.4670 OF 2021(G)

APPENDIX PETITIONER'S/S EXHIBITS:

EXHIBIT P1 TRUE COPY OF THE ORDER DATED 24.9.2019 IN M.C.NO.95/2019 ON THE FILE OF THE CHIEF JUDICIAL MAGISTRATE'S COURT, MANJERI.