Kerala High Court

Priyanka Praveen vs Canara Bank on 7 January, 2021

         IN THE HIGH COURT OF KERALA AT ERNAKULAM

                            PRESENT

     THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR

                               &

         THE HONOURABLE MR. JUSTICE SHAJI P.CHALY

THURSDAY, THE 07TH DAY OF JANUARY 2021 / 17TH POUSHA, 1942

                        WA.No.33 OF 2021

AGAINST THE JUDGMENT IN WP(C) 27910/2020(K) OF HIGH COURT
                OF KERALA DATED 15.12.2020


APPELLANT/PETITIONER:

           PRIYANKA PRAVEEN
           AGED 34 YEARS, W/O. PRAVEEN SOMARAJAN,
           RESIDING AT THAYYIL KIZHAKKETHIL,
           KIZHAKKUM MURI, THAMARAKULAM VILLAGE,
           ALAPUZHA DISTRICT

           BY ADVS.
           SRI.M.V.THAMBAN
           SRI.R.REJI
           SMT.THARA THAMBAN
           SRI.B.BIPIN
           SRI.ARUN BOSE

RESPONDENTS/RESPONDENTS:

     1     CANARA BANK
           REPRESENTED BY ITS BRANCH MANAGER,
           NOORANAD BRANCH, NOORANAD (PO),
           ALAPUZHA DISTRICT

     2     THE AUTHORIZEWD OFFICER,
           CANARA BANK, REGIONAL OFFICE,
           1ST FLOOR, BSNL BUILDING,
           NEAR IRON BRIDGE, ALAPUZHA,PIN-688 011


           SRI.LEO GEORGE, SC FOR RESPONDENTS

     THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON
07.01.2021, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
 W.A.33/2021
                                         2


                                     JUDGMENT

Dated this the 7th day of January, 2021

S. Manikumar, CJ.

Being aggrieved by the judgment in W.P(C). No.27910 of 2020 dated

15.12.2020, instant writ appeal is filed. The judgment impugned in this

appeal is extracted hereunder:

"The petitioner, who had availed a loan from the respondent bank, defaulted in repayment of the same. Consequently, the respondent bank initiated proceedings under the Securitisation and Reconstructions of Financial Assets and Enforcement of Security Interest Act, 2002, hereinafter referred to as the 'SARFAESI Act', to recover the loan amounts. Ext.P1 is the copy of the notice issued by the respondent bank. The total amount outstanding under the loan availed by the petitioner as on 30.11.2020 is stated to be Rs.38,75,294/-.

2. I have heard the learned counsel for the petitioner and the learned Standing Counsel appearing on behalf of the respondent bank.

3. On a consideration of the facts and circumstances of the case and the submissions made across the bar, and taking note of the plea of financial hardship raised by the petitioner, I dispose the writ petition with the following directions:-

(i) If the petitioner pays the said amount of Rs.38,75,294/- together with accrued interest till the date of payment in 10 equal and successive monthly installments commencing from 06.01.2021, then further proceedings for recovery as against the petitioner shall be kept in abeyance.

(ii) It is made clear that, if the petitioner commits a default in respect of any of the installments, she will lose the benefit of W.A.33/2021

this judgment and the respondent bank will be free to continue the recovery proceedings against her from the stage at which they presently stand.

(iii) It is further made clear that inasmuch as it is in exceptional cases that this Court would grant the reliefs aforementioned, no further petition for modification/extension of time will be entertained. "

2. Though Mr. M.V. Thamban, learned counsel for the appellant, made

submissions on the ground that due to lockdown and other restrictions

imposed by the Government, there occurred default of payment after March,

2020, we are not inclined to interfere with the impugned judgment, for the

reason that going through the material on record, it could be seen that

overdraft facility was availed in the year 2018, by mortgaging scheduled

properties, and possession notice dated 13.11.2020 was issued under

Section 13(4) of the SARFAESI Act, 2002.

3. Further, going through the impugned judgment, it could be deduced

that despite judgments of Hon'ble Supreme Court, on the maintainability of

Writ Petition against proceedings initiated under SAFAESI Act, 2002, writ

court has granted indulgence in payment of balance amount in ten equal and

successive monthly installments commencing from 06.01.2021.

4. Repeatedly, the Hon'ble Apex Court has held that Writ Petitions, as

against the proceedings initiated under the SARFAESI Act, 2002, should not

be entertained. Reference can be made to a few decisions of the Hon'ble

Apex Court on that aspect. In Authorised Officer, State Bank of Travancore W.A.33/2021

and Another v. Mathew K.C. reported in (2018) 3 SCC 85, at paragraphs 15

to 18, the Hon'ble Apex Court held as under:

"15. It is the solemn duty of the Court to apply the correct law without waiting for an objection to be raised by a party, especially when the law stands well settled. Any departure, if permissible, has to be for reasons discussed, of the case falling under a defined exception, duly discussed after noticing the relevant law. In financial matters grant of ex-parte interim orders can have a deleterious effect and it is not sufficient to say that the aggrieved has the remedy to move for vacating the interim order. Loans by financial institutions are granted from public money generated at the tax payers expense. Such loan does not become the property of the person taking the loan, but retains its character of public money given in a fiduciary capacity as entrustment by the public. Timely repayment also ensures liquidity to facilitate loan to another in need, by circulation of the money and cannot be permitted to be blocked by frivolous litigation by those who can afford the luxury of the same. The caution required, as expressed in United Bank of India v. Satyawati Tondon and others [AIR 2010 SC 3413], has also not been kept in mind before passing the impugned interim order:-

"46. It must be remembered that stay of an action initiated by the State and/or its agencies/instrumentalities for recovery of taxes, cess, fees, etc. seriously impedes execution of projects of public importance and disables them from discharging their constitutional and legal obligations towards the citizens. In cases relating to recovery of the dues of banks, financial institutions and secured creditors, stay granted by the High Court would have serious adverse impact on the financial health of such bodies/institutions, which (sic will) ultimately prove detrimental to the economy of the nation. Therefore, the High Court should be extremely careful and circumspect in exercising its discretion to grant stay in such matters. Of course, if the petitioner is able to show that its case falls within any of the exceptions carved out in Baburam Prakash Chandra Maheshwari v. Antarim Zila Parishad, [1969 AIR 556, 1969 SCR (1) 518], Whirlpool Corpn. v. Registrar of Trade Marks [(1998) 8 SCC 1], and Harbanslal Sahnia v. Indian Oil Corpn. Ltd. [AIR 2003 SC W.A.33/2021

2120] and some other judgments, then the High Court may, after considering all the relevant parameters and public interest, pass an appropriate interim order."

(emphasis supplied)

16. The writ petition ought not to have been entertained and the interim order granted for the mere asking without assigning special reasons, and that too without even granting opportunity to the Appellant to contest the maintainability of the writ petition and failure to notice the subsequent developments in the interregnum. The opinion of the Division Bench that the counter affidavit having subsequently been filed, stay/modification could be sought of the interim order cannot be considered sufficient justification to have declined interference.

17. We cannot help but disapprove the approach of the High Court for reasons already noticed in Dwarikesh Sugar Industries Ltd. v. Prem Heavy Engineering Works (P) Ltd. and Another, [(1997) 6 SCC 450], observing :-

"32. When a position, in law, is well settled as a result of judicial pronouncement of this Court, it would amount to judicial impropriety to say the least, for the subordinate courts including the High Courts to ignore the settled decisions and then to pass a judicial order which is clearly contrary to the settled legal position. Such judicial adventurism cannot be permitted and we strongly deprecate the tendency of the subordinate courts in not applying the settled principles and in passing whimsical orders which necessarily has the effect of granting wrongful and unwarranted relief to one of the parties. It is time that this tendency stops."

18. The impugned orders, are therefore, contrary to the law laid down by this Court under Art.141 of the Constitution and unsustainable. They are therefore set aside and the appeal is allowed."