Mohammed Musthafa vs Kerala State Co-Operative Bank ...
2021 Latest Caselaw 165 Ker

                   IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                    PRESENT

                 THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN

         TUESDAY, THE 05TH DAY OF JANUARY 2021 / 15TH POUSHA, 1942

                            WP(C).No.37 OF 2021(D)


PETITIONER:

                 MOHAMMED MUSTHAFA
                 AGED 55 YEARS
                 S/O.CHEKKU,OOKKAYIL HOUSE,
                 THALAPPILLY VILLAGE,THALAPPILLY TALUK,THRISSUR.

                 BY ADV. SMT.S.MUMTAZ

RESPONDENT:

KERALA STATE CO-OPERATIVE BANK LTD., REPRESENTED BY THE AUTHORIZED OFFICER,SAHAKARANA SATHABDHI MANDIRAM,TUDA ROAD,KOVILAKATHUMPADOM, THIRUVAMBADY,TRISSUR-680022.

OTHER PRESENT:

SRI. GILBERT GEORGE CORREYA - SC

THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 05.01.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No.37 OF 2021(D)

JUDGME NT

The essential challenge pitched by the petitioner is against

certain proceedings that have been initiated by the respondent

Bank under the provisions of the Securitisation and

Reconstruction of Financial Assets and Enforcement of Securities

Interest Act ('the SARFAESI Act' for brevity).

2. I have heard the learned counsel for the petitioner and

the learned counsel for the respondent Bank.

3. I am conscious that I am jurisdictionally proscribed from

entering into any enquiry or consideration of the legality or

otherwise of the orders impugned in this writ petition on account

of the imperative statutory provisions and binding judicial

pronouncements especially that of the Hon'ble Supreme Court in

Union Bank of India v. Satyawati Tondon ((2010) 8 SCC 110)

and followed recently in Authorised Officer, SBT v. Mathew

(ILR 2018 (1) Ker. 479). I, therefore, do not propose to consider

any of the contentions raised by the petitioner on merits.

4. However, obviously being aware of this issue, the

learned counsel appearing for the petitioner has prayed that

notwithstanding the limitations of jurisdiction as aforementioned, WP(C).No.37 OF 2021(D)

the petitioner may be granted some leniency or latitude in order

to enable him to pay off the overdue amounts in instalments.

5. I have enquired with the learned counsel for the Bank as

to whether the request on the part of the petitioner can be

allowed, especially on account of the fact that the Banks are only

interested in recovering and not in maintaining and keep pending

litigations and legal proceedings against the recovery. The learned

counsel has fairly submitted that the Bank is concerned about

recovery at the earliest and that if the petitioner pays off the dues

quickly, it would be to their interest also.

6. In view of the fact that the proceedings initiated by the

Bank would consume time to culminate in total recovery and

taking into account the financial constraints and burden that have

been alleged and pleaded by the petitioner, I am inclined to

dispose of the writ petition allowing him an opportunity to pay off

the overdue amounts demanded by the Bank.

7. The learned counsel for the Bank at this time submits

that the petitioner can be allowed to pay off the over due amount

of Rs.30,25,834/- in not more than 12 instalments commencing

from 05.02.2021 and that the account can thus be regularised by WP(C).No.37 OF 2021(D)

the Bank.

8. The learned counsel for the petitioner says that the

petitioner is agreeable to the above offer made by the Bank and

therefore, that the writ petition may be ordered granting

permission to the petitioner to pay off the amount in the manner

as afore.

9. In such circumstances, I direct the petitioner to pay off

the overdue amount of Rs.30,25,834/- as on 31.12.2020, along

with applicable charges and interest, in 12 equal monthly

instalments commencing from 05.02.2021 He shall also in addition

to this pay the regular EMIs without fail. If such payment is made

by the petitioner, his loan account would stand regularised and he

would then be at liberty to service the account as per the terms of

the loan sanctioned. It goes without saying that if there is any

default in making the payment as directed above, the benefit

granted under this judgment would stand vacated and the Bank

will be at liberty to recover the entire liability from the petitioner

by continuing with the proceedings from the stage it is on this

date.

I make it clear that the directions in this judgment are WP(C).No.37 OF 2021(D)

peremptory in nature and that the petitioner will have to comply

with the same meticulously.

The writ petition is ordered accordingly.

SD/-

                                       DEVAN RAMACHANDRAN

rp                                              JUDGE
 WP(C).No.37 OF 2021(D)






                                   APPENDIX

PETITIONER'S/S EXHIBITS:

EXHIBIT P1                 POSSESSION NOTICE DATED 04/11/2020 ISSUED BY THE
                           RESPONDENT TO THE PETITIONER

EXHIBIT P2                 REQUEST LETTER DATED 09/12/2020 GIVEN BY THE
                           PETITIONER TO THE RESPONDENT.