Kerala High Court
Kausalya vs Authorized Officer on 18 January, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A.M.BADAR
MONDAY, THE 18TH DAY OF JANUARY 2021 / 28TH POUSHA, 1942
WP(C).No.1203 OF 2021(A)
PETITIONERS:
1 KAUSALYA,
AGED 70 YEARS
W/O. LATE RAGHAVAN, CHENGOLIKKANDI HOUSE,
KOLAKKAD P.O., ATHOLI, KOZHIKODE, PIN-673 315.
2 SAJEEVAN,
AGED 43 YEARS
S/O.RAGHAVAN, CHENGOLIKKANDI HOUSE, KOLAKKAD P.O.,
ATHOLI, KOZHIKODE, PIN-673 315.
BY ADV. SRI.SAJEEVAN KURUKKUTTIYULLATHIL
RESPONDENTS:
1 AUTHORIZED OFFICER,
KERALA STATE CO-OPERATIVE BANK LIMITED (FORMER
KOZHIKODE DISTRICT CO-OPERATIVE BANK LIMITED),
P.B.NO.503, CHALAPPURAM P.O., KOZHIKODE, PIN-673 315.
2 THE BRANCH MANAGER,
KERALA STATE CO-OPERATIVE BANK LIMITED, CHEROOTTY
ROAD BRANCH, CHEROOTTY ROAD P.O., CALICUT,
PIN-673 001.
3 ARSHAD,
AGED 49 YEARS
S/O. ABDURAHIMAN, HILITE, KALLAI ROAD,
CHALAPPURAM P.O., KOZHIKODE, PIN-673 315.
OTHER PRESENT:
SRI. P.C.SASIDHARAN, SC.
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
18.01.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
W.P.(C) No.1203/2021 2
JUDGMENT
Dated this the 18th day of January 2021
The petitioners approached this Court seeking a direction to
the respondent-Bank to return back the physical possession of the
mortgaged property and also to regularise their loan account after
accepting the defaulted amount in instalments.
2. Heard both sides.
3. Learned counsel for the petitioners argued that there is a
'Sarpa kavu' situated in the mortgaged property where family of
petitioners is lighting a lamp. The petitioners and their family
members would be put to extreme hardship if the petitioners are
not granted instalments of loan of which substantial portion has
been paid off. With this, it is argued that the mortgaged property
be returned back to the petitioners by granting them permission to
repay the loan in 15 instalments.
4. Learned counsel for the respondent-secured creditor
opposed the writ petition by contending that not a single instalment
of loan of Rs.27,70,000/- was paid by the petitioners from the date
i.e. 31.03.2017 when the loan was obtained. It is argued that the
loan became non performing asset on 31.07.2017 and as on
14.01.2021, the outstanding amount is Rs.42,77,695/-. It is also
argued that the actual possession has already been taken on
25.11.2020.
5. I have considered the submissions so advanced and
perused the materials placed before me. After issuance of demand
notice at Ext.P1 by declaring the loan as non performing asset and
also after following due steps as prescribed by the SARFAESI Act,
the secured creditor had obtained possession of the secured asset
after filing necessary application under Section 14 of the SARFAESI
Act before the Chief Judicial Magistrate. Virtually, the petitioner, in
indirect manner, is challenging Ext.P1 demand notice as well as the
action taken by the secured creditor for taking possession of the
secured asset by resorting to provisions of SARFAESI Act.
Considering the fact that after obtaining loan on 31.03.2017,
it turn into non performing asset on 31.07.2017 as well as the fact
that demand notice was issued by the secured creditor in the year
2018 itself which resulted in proceeding the matter ahead till
recovery of possession of the secured asset, I am of the considered
opinion that this is not a fit case to exercise the discretion in favour
of petitioners by interfering with the action taken by the secured
creditor as per the provisions of the SARFAESI Act.
This writ petition as such is devoid of merit and the same is
accordingly dismissed.
Sd/-
A.M.BADAR
JUDGE
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APPENDIX
PETITIONER'S EXHIBITS:
EXHIBIT P1 A TRUE COPY OF THE NOTICE DATED 21.5.2018
ISSUED BY THE 1ST RESPONDENT U/S 13(2) OF
SARFAESI ACT WITH TRANSLATION.
EXHIBIT P2 A TRUE COPY OF THE PETITION IN M.C.NO.54
OF 2020 BEFORE THE CHIEF JUDICIAL
MAGISTRATE COURT, KOZHIKODE.
RESPONDENTS' EXHIBITS: NIL.
True Copy
P.S to Judge
smp
