Ranju A. vs The Indian Overseas Bank
2021 Latest Caselaw 1411 Ker

                IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                PRESENT

                  THE HONOURABLE MR. JUSTICE A.M.BADAR

    THURSDAY, THE 14TH DAY OF JANUARY 2021 / 24TH POUSHA, 1942

                        WP(C).No.1035 OF 2021(D)


PETITIONER/S:

                RANJU A.,AGED 54 YEARS
                S/O. AZHAKESAN, RESIDING AT GEETHALAYAM, MULLUVILA,
                VADAKKEVILA P.O., KOLLAM, PIN-691 020.

                BY ADV. SRI.A.JANI(KOLLAM)

RESPONDENT/S:

      1         THE INDIAN OVERSEAS BANK,KOLLAM BRANCH,
                REPRESENTED BY CHIEF MANAGER, MUSLIAR BUILDING,
                CHINNAKKADA, KOLLAM DISTRICT, PIN-691 001.

      2         THE STATE LEVEL BANKERS COMMITTEE (SLBC), KERALA
                SLBC CELL, CANARA BANK, CIRCLE OFFICE,
                CANARA BANK BUILDING, M.G. ROAD,
                THIRUVANANTHAPURAM, PIN-695 033
                REPRESENTED BY CHIEF MANAGER.

      3         DEPUTY SECRETARY,INDUSTRIAL DEPARTMENT,
                SECRETARIAT, THIRUVANANTHAPURAM, PIN-695 001.

      4         THE STATE OF KERALA
                REPRESENTED BY THE PRINCIPAL SECRETARY,
                GOVERNMENT SECRETARIAT,
                THIRUVANANTHAPURAM, PIN-695 001.




                SC IOB- SRI.SUNIL SHANKAR,
                GP- SMT. POOJA SURENDRAN

     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
14.01.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C).No.1035 OF 2021              2




                              JUDGMENT

Dated this the 14th day of January 2021

Heard both sides.

2. The limited prayer made in this petition is to the effect

that respondents be directed to consider Ext.P12 representation

made by the petitioner for One Time Settlement and addressed to

the Branch Manager, Indian Overseas Bank, Kollam branch.

3. Heard the learned counsel appearing for the petitioner at

sufficient length of time. He drew my attention to the minutes of

the meeting, taken by the Hon'ble Chief Minister with

representatives of the cashew industry and banks on the crisis

being faced by the industry. Learned counsel appearing for the

petitioner drew my attention to paragraph No.5 of the minutes of

the meeting, which reflects that the decision of the bank not to

proceed against the residential premises of owners of cashew

industry came to be welcomed by the Hon'ble Chief Minister. With

this, learned counsel for the petitioner submitted that the petitioner

had proposed for One Time Settlement of the amount of loan and

had preferred applications to the secured creditor. My attention is

drawn to Ext.P7 application, by which One Time Settlement

proposal came to be moved by the petitioner to the secured

creditor. By drawing my attention to Ext.P9 communication by the

Chief Regional Manager of the Indian Overseas Bank, the learned

counsel for the petitioner submitted that because of Covid-19

pandemic, the said proposal was not materialised. Learned counsel

for the petitioner then drew my attention to the communication of

the petitioner to the secured creditor, i.e., Indian Overseas Bank

which is at Ext.P12. Learned counsel appearing for the petitioner

submits that by this representation, the petitioner has requested

the respondent bank to grant six month's time for filing a proposal

for disposal of the properties kept as collateral and had further

requested not to take possession of house of the petitioner. With

this, it is argued that now the respondent bank is taking possession

of the house of the petitioner instead of taking action for realising

the collateral. Learned counsel for the petitioner pointed out that

the original application under Section 19 of the Recovery of Debts

and Bankruptcy Act, 1993 (Ext.P1) shows the valuation of the

collateral. Hence, according to the learned counsel for the

petitioner, the respondents be directed not to take any adverse

action against the petitioner till the decision on Ext.P12 to adhere

to the minutes of the meeting with the Hon'ble Chief Minister.

4. Learned Standing Counsel appearing for respondent

No.1 opposed the petition by contending that the petition is for

circumventing the action taken under the SARFAESI Act. He argued

that the advocate commissioner had issued notice for taking

possession of the secured asset and it is the choice of the secured

creditor to realise the debt by choosing appropriate property for

sale. Learned counsel further argued that this writ petition as

framed and filed is not maintainable and the remedy, if any,

available to the petitioner lies before the Debts Recovery Tribunal

as per the provisions of the SARFAESI Act.

5. Learned Standing Counsel appearing for the respondent

bank further argued that Ext.P12 representation made by the

petitioner has already been decided on 13.01.2021 and the said

order is already communicated to the petitioner by email. It is

further argued that in pursuant to the minutes of meeting with the

Hon'ble Chief Minister, a Committee came to be constituted and

that Committee has already directed the petitioner to reduce his

liability and regularise his loan account. However, nothing has been

done by the petitioner in the said matter.

6. I have considered the submissions so advanced and also

perused the materials placed before me.

7. For recovery of amount of loan advanced to the

petitioner, 1st respondent has preferred an application under

Section 19 of the Recovery of Debts and Bankruptcy Act 1993. The

said application shows that the claim for Rs.16,01,55,092/- is laid

by the 1st respondent bank. The estimated value of properties or

assets over which the security interest was created is stated to be

554.12 lakhs in the said application. The 1 st respondent bank

pleaded that amount of unsecured debt not covered by estimated

value of the secured properties and other properties is to the tune

of Rs.10,57,43,092/-. It is seen that the respondent bank has

taken action for recovery of debt by resorting to the SARFAESI Act.

After declaring the loan account as Non Performing Asset, the 1 st

respondent bank has applied to the Chief Judicial Magistrate,

Kollam for taking possession of the secured assets. That is how, by

order in CMP No.2755/2015 filed by the 1 st respondent bank under

Section 14(1) of the SARFAESI Act, the advocate commissioner

came to be appointed by an order dated 10.03.2020 and the said

advocate commissioner had issued notice for taking possession of

the scheduled property on 18.01.2021. It is seen that the petitioner

is not aggrieved by any action taken under the SARFAESI Act

because the same appears not to have been challenged by the

petitioner before the Debts Recovery Tribunal.

8. In response to the request of the petitioner vide letter

dated 27.08.2020, the 1st respondent bank had communicated to

the petitioner that acceding to his request for One Time

Settlement, OTS sanction was conveyed to the petitioner vide

letter dated 11.12.2019, with instruction to remit OTS amount of

Rs.6.40 Crores on or before 31.03.2020. However, as that amount

was not paid, respondent bank had conveyed its inability to

consider the request of the petitioner. The petitioner was advised

to settle and close his loan account immediately. The petitioner

was intimated that if he fails to do so, recovery action will

commence.

9. It is thus clear that the petitioner was given ample

opportunities by the respondent bank to clear the outstanding

amount of loan.

10. The limited grievance made by the petitioner in the

instant petition is to direct the 1 st respondent bank to consider his

Ext.P12 representation. On instructions from his client, the learned

Standing Counsel appearing for the 1st respondent has made a

statement at bar that Ext.P12 representation is already decided by

the 1st respondent bank and the order is already communicated on

email to the petitioner. The statement so made is accepted.

In the light of the foregoing discussion, the writ petition is

dismissed.

Sd/-

                                               A.M.BADAR
ajt                                               JUDGE





                            APPENDIX
PETITIONER'S/S EXHIBITS:

EXHIBIT P1              TRUE COPY OF OA NO.294 OF 2020 WITHOUT
                        ANNEXURES.

EXHIBIT P2              TRUE COPY OF MINUTE OF MEETING CHAIRED BY
                        HONOURABLE CHIEF MINISTER OF KERALA.

EXHIBIT P3              TRUE COPY OF MINUTES OF MEETING CHAIRED BY
                        HONOURABLE CHIEF MINISTER OF KERALA.

EXHIBIT P4              TRUE COPY OF NOTICE ISSUED UNDER RULE 8(6)

AND 9(1) OF SECURITY INTEREST (ENFORCEMENT) RULES 2002.

EXHIBIT P5 TRUE COPY OF REVIVAL APPLICATION SUBMITTED AS PER EXHIBIT P2 TO P5.

EXHIBIT P6 TRUE COPY OF DETAILED REVIVAL APPLICATION SUBMITTED AS REQUIRED BY FIRST RESPONDENT.

EXHIBIT P7 TRUE COPY OF ONE TIME SETTLEMENT WILLINGNESS SUBMITTED AS REQUIRED BY FIRST DEFENDANT.

EXHIBIT P8 TRUE COPY OF NOTICE ISSUED BY GOVERNMENT OF KERALA TO FIRST RESPONDENT.

EXHIBIT P9 TRUE COPY OF LETTER ISSUED BY FIRST RESPONDENT EXTENDING PERIOD OF COMPLIANCE OF OTS.

EXHIBIT P10 TRUE COPY OF ORDER OF CJM, KOLLAM FOR POLICE PROTECTION.

EXHIBIT P11 TRUE COPY OF NOTICE ISSUED BY ADVOCATE APPOINTED AS PER EXHIBIT P12.

EXHIBIT P12 REPRESENTATION SUBMITTED BY WRIT PETITIONER TO FIRST RESPONDENT.

EXHIBIT P13 NOTICE ISSUED BY FIRST RESPONDENT THROUGH ADVOCATE COMMISSIONER.