Kerala High Court
A.Navas vs The Authorised Officer on 12 January, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A.M.BADAR
TUESDAY, THE 12TH DAY OF JANUARY 2021 / 22TH POUSHA, 1942
WP(C).No.773 OF 2021
PETITIONER/S:
A.NAVAS, AGED 45 YEARS
S/O. ABOOBACKER, PUTHENVILA MELETHIL VEEDU,
ELAMPALLOOR, KUNDARA, KOLLAM - 691501, BUSINESS
ADDRESS AT SPARK MARUTHI SERVICE,
NEAR POLICE QUARTERS, ELAMPALLOOR, KUNDARA P.O.
KOLLAM - 691501.
BY ADVS.
SMT.MINI GANGADHARAN
SMT.ASWATHI S. KUMAR
RESPONDENT/S:
1 THE AUTHORISED OFFICER, REPCO HOME FINANCE LIMITED,
3RD FLOOR, ALEXANDER SQUARE,
NEW NO. 2(OLD NO.34 AND 35) SARDAR PATEL ROAD,
GUINDY, CHENNAI - 689001.
2 THE BRANCH MANAGER,
REPCO HOME FINANCE LIMITED, BEHIND ST. JOSEPH'S
CONVENT, KOLLAM - 691001.
SRI. POULOCHAN ANTONY, STANDING COUNSEL
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
12.01.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C).No.773 OF 2021 2
JUDGMENT
Dated this the 12th day of January 2021
Heard the learned counsel appearing for the petitioner.
2. The petitioner had availed a loan of Rs.30,00,000/-
(Rupees thirty lakhs only) on 18.03.2013 and he defaulted
payment of instalments. Now the loan has turned to a Non
Performing Asset.
3. Learned counsel for the petitioner vehemently argued
that because of pandemic Covid -19, business of the petitioner
collapsed, his mother was died and family members were affected
by Covid -19. The learned counsel further argued that the
petitioner could not comply the judgment of this Court rendered in
W.P(C). No.4265 of 2020 because of the outbreak of Covid-19 and
financial crisis suffered by the petitioner. With this, the learned
counsel further submits that Ext.P3 notice be quashed after hearing
the parties and till then the same be stayed.
4. Learned counsel appearing for the Secured Creditor
opposed the writ petition by pointing out that once discretion was
shown to the petitioner by this Court and now no indulgence can be
shown because the secured creditor is taking steps as per the
Securitisation and Reconstruction of Financial Assets and
Enforcement of Securities Interest Act ('the SARFAESI Act' for
brevity).
5. I have considered the submissions so advanced and
perused the records.
6. On an earlier occasion, action initiated by the
respondent under the SARFAESI Act came to be challenged by the
petitioner by filing W.P.(C).No.4265 of 2020 before this Court which
was decided on 14.02.2020. This Court by showing indulgence had
permitted the petitioner to pay outstanding overdue amounts in
three equated monthly instalments along with regular EMI, starting
from 29.02.2020 and on the corresponding dates of the succeeding
months. Till then, the action taken under the SARFAESI Act was
directed to be kept in abeyance.
7. The petitioner failed to comply with directions in W.P.(C).
No.4262 of 2020 by which indulgence was shown by keeping the
action initiated under the SARFAESI Act in abeyance. Now again,
the petitioner is challenging the demand notice dated 21.01.2020
issued under Section 13(2) of the SARFAESI Act which was earlier
challenged in the above noted writ petition. In the light of the
observations of the Hon'ble Apex Court in the matter of
Authorized Officer, State Bank of Travancore and another vs.
Mathew K.C (2018(1) KLT 784), the petition as framed and filed is
not maintainable as the remedy lies elsewhere. No further case of
indulgence is shown in the light of availability of alternate and most
efficacious remedy under the SARFAESI Act.
The writ petition is accordingly dismissed.
Sd/-
A.M.BADAR
ajt JUDGE
APPENDIX
EXHIBIT P1 - TRUE PHOTOCOPY OF STATEMENT OF ACCOUNT FOR THE
PETITIONER FROM 01.04.2007 TO 29.06.2018 SHOWS ONLY AN OVERDUE
SUM OF RS.83,937/- AS ON 30.06.2018
EXHIBIT P2 - TRUE PHOTOC0PY OF THE COUNTERFOIL DATED 05.09.2019
FOR TRANSFER OF RS.ONE LAKH TO THE PETITIONER'S LOAN ACCOUNT
WITH THE 2ND RESPONDENT.
EXHIBIT P3 - TRUE COPY OF DEMAND NOTICE DATED 21.01.2020 ISSUED
TO THE PETITIONER UNDER SECTION 13(2) OF THE SARFAESI ACT BY THE
1ST RESPONDENT
EXHIBIT P4 - TRUE COPY OF UNCERTIFIED COPY OF JUDGMENT DATED
14.02.2020 IN WP(C). NO.4265/2020 OF THE HIGH COURT OF KERALA
EXHIBIT P5 - TRUE COPY OF CASH RECEIPT VOUCHER DATED 28.02.2020
FOR HAVING PAID RS.1,83,000/- BY THE PETITIONER.
EXHIBIT P6 - TRUE COPY OF CERTIFICATE DATED 06.10.2020 IN LOAN
ACCOUNT NO.1601890000225 FOR THE PETITIONER SHOWING TOTAL
OUTSTANDING AS RS.19,39,392.82
EXHIBIT P7 - TRUE COPY OF DEATH CERTIFICATE FOR THE PETITIONER'S
MOTHER FATHIMA
EXHIBIT P8 - TRUE COPY OF FINA ANTIGEN TEST RESULT FOR
PETITIONER
EXHIBIT P9 - TRUE COPY OF FINAL ANTIGEN TEST RESULT FOR THE
PETITIONER'S SON MOHAMMED ROSHAN
EXHIBIT P10 - TRUE COPY OF PETITIONER'S APPLICATION DATED
04.01.2021 BEFORE THE 2ND RESPONDENT SEEKING FOR A SPAN OF 6
MONTHS TO CLEAR THE DUES IN THE PETITIONER'S LOAN ACCOUNT.
