Madhusoodanan vs Authorized Officer
2021 Latest Caselaw 6688 Ker

Citation : 2021 Latest Caselaw 6688 Ker
Judgement Date : 25 February, 2021

Kerala High Court

Madhusoodanan vs Authorized Officer on 25 February, 2021

                IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                PRESENT

                  THE HONOURABLE MR. JUSTICE A.M.BADAR

   THURSDAY, THE 25TH DAY OF FEBRUARY 2021 / 6TH PHALGUNA, 1942

                        WP(C).No.4837 OF 2021(D)


PETITIONER/S:

                MADHUSOODANAN,
                AGED 62 YEARS,
                S/O. VASU, AROMAL NIVAS, ELAKAMON P.O. CHIRAYANKEEZHU
                TALUK, THIRUVANANTHAPURAM.

                BY ADVS.
                SRI.R.DIVAKARAN
                SRI.BINOI GEORGE (CHERUKARA)
                SMT.U.S.SARITHA
                SHRI.HARIKIRSHNAN V.A

RESPONDENT/S:

      1         AUTHORIZED OFFICER,
                BANK OF BARODA, REGIONAL OFFICE, VASUDEVA BUILDING,
                T.D ROAD, ERNAKULAM 682 011.

      2         SENIOR MANAGER,
                BANK OF BARODA, VARKALA BRANCH, VARKALA,
                THIRUVANANTHAPURAM 695 141.

                BY ADV. SRI.LEO GEORGE, SC

     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
25.02.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C).No.4837 OF 2021

                                         2




                                 JUDGMENT

Dated this the 25th day of February 2021

Heard learned Counsel for the petitioner. The

petitioner has prayed for the following reliefs in

this petition.

        "(i)     Issue      a     writ       in      the       nature     of
        mandamus      or    any     other          appropriate          writ
        order        or         direction           directing            the
        respondents        stay     all       further       proceedings
        to     take       possession           of        the      property

mortgaged with the bank as per Exhibit P4.

        (ii)     Issue      a     writ       in      the       nature     of
        mandamus      or    any    other          appropriate        writ,
        order        or         direction           directing            the

respondents not to take possession of the secured assets till the disposal of Exhibit P5.

        (iii)     Issue      a    writ        in     the       nature    of
        mandamus      or    any    other          appropriate        writ,
        order        or         direction           directing            the
        respondents        and     allow       the       petitioner       to
        settle    the      liability         of    the     bank    as   per
        Exhibit P5.
 WP(C).No.4837 OF 2021





           (iv)    Grant     any    other     appropriate         relief,

which is prayed by the petitioner during the course of hearing which this Honourable Court may deem fit and proper in the facts and circumstances of the case."

2. Learned Counsel for the petitioner argued that,

in the year 2009, the petitioner and his wife had

availed a housing loan of Rs.15 lakhs. The petitioner

is now willing to pay an amount of Rs.5 lakhs in one

month and the balance amount of the loan in six

monthly instalments. According to the petitioner, the

application at Ext.P5 for grant of instalments is

pending consideration of the secured creditor.

Learned Counsel for the petitioner argued that the

petitioner had met with an accident in the year 2016

and is bed ridden. His wife is suffering from heart

disease. Therefore, according to learned Counsel for

the petitioner, the petitioner be permitted to clear

the amount of loan and other charges, in instalments.

3. By filing counter affidavit, the learned WP(C).No.4837 OF 2021

Counsel for the respondents opposed the petitioner and

contended that, this is the 3rd round of litigation at

the instance of borrowers. Learned Counsel for the

respondents submitted that the petitioner had not

complied with the judgment of this Court rendered in

W.P.(C).No.28678/2013, and another writ petition at

the instance of the co-borrower, who happens to be the

wife of the petitioner, has been dismissed by this

Court.

4. Annexure R1(a) is the copy of the judgment

rendered by this Court in W.P.(C).No.28678/2013 on

25.11.2013. This petition was filed by the petitioner

as well as his wife. By this judgment, this Court had

directed to put on hold the steps taken by the

respondent secured creditor under the SARFAESI Act.

Petitioner was directed to deposit an amount of Rs.3

lakhs towards the dues with a further direction to the

respondents to consider Ext.P4 representation for sale

of portion of the property and application of the sale

proceeds for discharge of arrears of loan. It is WP(C).No.4837 OF 2021

reported that, though the petitioner had deposited an

amount of Rs.3 lakhs under this judgment, he never

sold the portion of his property to discharge his

liability towards the loan.

5. According to the respondents, then the Advocate

Commissioner, Advocate Nazer D, who was appointed by

learned Chief Judicial Magistrate in MC No.73/2011,

waited for compliance of this judgment till 2018. He

thereafter attempted to take possession, but failed to

succeed and thereafter, surrendered the commission

warrant. Then, Advocate Newton came to be appointed

for taking possession of the secured assets. When

Advocate Newton attempted to take possession of the

secured assets, the borrowers thwarted the attempt

physically and creating a scene of threatening to

commit suicide in the premises of the secured asset by

pouring petrol on himself and setting himself ablaze.

Therefore, the Advocate Commissioner could not take

possession of the secured assets and that is how the

learned Chief Judicial Magistrate, according to the WP(C).No.4837 OF 2021

respondents, closed the proceedings in MC No.73/2011

wide order dated 30.11.2018.

6. Thereafter, the authorized officer of the bank

again invoked provisions under Section 14 of the

SARFAESI Act by filing MC No.601/2020, and that is how

Adv.Swapna C. Nair, Advocate Commissioner was

appointed for taking possession of the secured assets.

7. It is worthwhile to point out that the co-

borrower, i.e. the wife of the petitioner had filed

the W.P.(C).No.19834/2018 with a request to permit the

loanee to pay the overdue amount in instalments. This

petition came to be dismissed wide judgment dated

26.06.2018 by this Court. Paragraphs 4 and 5 of the

said judgment needs reproduction and those read thus:

"4. The facts are not in dispute: The petitioner had committed default, and the respondent bank initiated recovery proceedings. The issue, pure and simple, is a contractual dispute-a commercial one at that.

5. It is impermissible to compel, even to WP(C).No.4837 OF 2021

expect, the bank officials to respond to the petitioner's demand for instalments. Instalments they have since inception; what the petitioner now wanted is a rescheduling of the loan, which is the creditor's prerogative. And it is not in this Court's province."

8. It is thus seen that the co-borrower, on

earlier occasion, had approached this Court with the

same relief of clearing the arrears in instalments and

this Court, vide judgment dated 26.06.2018, had

refused to grant the said relief. Identical relief

has been asked in this instant petition.

In view of the dismissal of the earlier writ

petition filed by the co-borrower for the same relief,

the instant writ petition also needs to be dismissed

and is accordingly dismissed.

Sd/-

A.M.BADAR