Saju T vs The Authorized Officer
2021 Latest Caselaw 1305 Ker

                IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                PRESENT

                  THE HONOURABLE MR. JUSTICE A.M.BADAR

   WEDNESDAY, THE 13TH DAY OF JANUARY 2021 / 23TH POUSHA, 1942

                        WP(C).No.863 OF 2021(G)


PETITIONER/S:

                SAJU T,AGED 43 YEARS
                S/O THAJUDEEN A, FATHIMA MANZIL, SECULAR NAGAR-39,
                KILIKOLLOOR, KOLLAM-691 004.

                BY ADV. SRI.HARISH GOPINATH

RESPONDENT/S:

                THE AUTHORIZED OFFICER,
                CANARA BANK, SME KOLLAM BRANCH, AYATHIL,
                KALLUMTHAZHAM P.O.KOLLAM-691 004.




                SRI. M.GOPIKRISHNAN NAMBIAR, STANDING COUNSEL

     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
13.01.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C).No.863 OF 2021                 2



                                 JUDGMENT

Dated this the 13th day of January 2021

Heard both sides.

2. Learned counsel appearing for the petitioner submitted

that petitioner is engaged in the business of processing raw cashew

nuts. He had availed two loans, one is in the form of overdraft

facility and the other as a term loan. However, because of the

sudden change in the tax structure and unpredicted lockdown due

to Covid-19, the petitioner was compelled to stop the business. He

has suffered a severe loss and as such was compelled to cancel

lease of the factory. Now the petitioner wants to clear the entire

overdue amount within a period of one month. Therefore,

according to the learned counsel for the petitioner, the proceedings

under the Securitisation and Reconstruction of Financial Assets and

Enforcement of Securities Interest Act ('the SARFAESI Act' for

brevity) needs to be withheld with a direction to the respondent

bank to regularise the loan account.

3. The learned Standing Counsel appearing for the

respondent-secured creditor opposed the petition contending that

this Court has no jurisdiction to entertain the same. The learned

Standing counsel further argued that the respondent bank is not

willing to grant time as prayed, for clearing the overdue amount

because the Unit is not working. There is no stock and the

overdraft facility is also overdue.

4. I have considered the submissions so advanced and

perused the materials placed on record.

5. The writ petition is virtually challenging the demand

notice under Section 13(2) of the SARFAESI Act and consequential

steps taken for possession of the secured assets. Therefore, 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. The writ petition is

accordingly dismissed. However, if the petitioner makes an

appropriate application for clearing all overdue amount and for

regularisation of the loan amount, the respondent bank may

consider the same in accordance with law, if so advised.

The writ petition is accordingly, dismissed.

Sd/-

                                                 A.M.BADAR
ajt                                                 JUDGE





                           APPENDIX
PETITIONER'S/S EXHIBITS:

EXHIBIT P1             TRUE COPY OF THE DEMAND NOTICE DATED
                       30.9.2020 ISSUED BY THE RESPONDENT

EXHIBIT P2             TRUE COPY OF THE POSSESSION NOTICE DATED
                       7.1.2021 ISSUED BY THE RESPONDENT