Biju Mathew Abraham vs State Bank Of Travancore
2021 Latest Caselaw 13416 Ker

           IN THE HIGH COURT OF KERALA AT ERNAKULAM
                            PRESENT
        THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
                               &
           THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
   MONDAY, THE 28TH DAY OF JUNE 2021 / 7TH ASHADHA, 1943
                      WA NO. 2186 OF 2016
 AGAINST THE JUDGMENT IN WPC 26222/2016 OF HIGH COURT OF
               KERALA, ERNAKULAM DATED 7.10.2016
APPELLANT/PETITIONER:

           BIJU MATHEW ABRAHAM
           S/O. MATHEW ABRAHAM,
           NANAVEETTIL PUTHENPARAMBIL,
           KOZHENCERI EAST, P.O.,

           BY ADVS.
           SRI.JOHN MATHEW (THEREZHATH)
           SRI.P.R.ASHOK KUMAR
           SRI.JOBIN JOHN



RESPONDENTS/RESPONDENTS:

    1      STATE BANK OF TRAVANCORE
           (ASSOCIATE OF THE STATE BANK OF INDIA)
           KOZHENCHERY BRANCH, POYANIL PLAZA,
           KOZHENCHERRY, PIN- 689 650.
           REPRESENTED BY ITS BRANCH MANAGER,

    2      AUTHORISED OFFICER
           STATE BANK OF TRAVANCORE, KOZHENCHERRY BRANCH,
           PATHANAMTHITTA. PIN- 689 650.

           BY SRI.R. S. KALKURA, STANDING COUNSEL FOR R1 & 2

THIS WRIT     APPEAL HAVING   COME UP       FOR    ADMISSION ON
28.06.2021,   THE COURT ON    THE SAME      DAY   DELIVERED THE
FOLLOWING:
    W.A.2186/2016
                                           2



                                  JUDGMENT

Dated this the 28th day of June, 2021

S. Manikumar, CJ.

On 24.6.2021, there was no representation for appellant. We

directed the Registry to post the matter on 28.6.2021. Thus it is listed

today.

2. There is no representation on two occasions. Thus we are

constrained to pass orders on merits.

3. Subject matter of challenge relates to issuance of Exhibit P1

notice, under Section 13(1) and Exhibit P2 notice to take possession of

the secured asset under the Securitisation and Reconstruction of

Financial Assets and Enforcement of Security Interest (SARFAESI) Act,

2002.

4. Writ court, while declining to grant reliefs sought for, at

paragraphs 4 to 7 ordered thus:

"4. The only question to be considered is whether the petitioner is entitled to the benefit of Section 31 (j) of the Act. Section 31 (j) reads as under:

"31. Provisions of this Act not to apply in certain cases.-

The provisions of this Act shall not apply to

(j) any case in which the amount due is less than W.A.2186/2016

twenty per cent of the principal amount and interest thereon."

5. Learned counsel for the petitioner submits that the statute had given various benefits to the debtors also as reflected in Section 31 and if the amount due is less than 20%, SARFAESI proceedings cannot be initiated. The amount due according to the learned counsel is the amount ie; outstanding beyond the loan amount which has been granted in favour of the petitioner. In other words, only if the liability exceeds 20% of the loan amount, SARFAESI proceedings can be initiated. Reference is also made to 5 th proviso to Section 13 (9) wherein an explanation is given to the amount outstanding in the said section. Clause (b) of the Explanation which reads as under:

"(b) "amount outstanding" shall include principal, interest and any other dues payable by the borrower to the secured creditor in respect of secured asset as per the books of account of the secured creditor."

4. On the other hand, the learned counsel for the respondent Bank submits that the scheme of the Act enables the Bank to take SARFAESI proceedings when the account had been declared as NPA and therefore, on a consideration of the scheme of the Act, the amount due as stated in Section 31 (j) is the balance amount due after discharging major portion of the liability, ie; upto 80%.

7. Having heard the learned counsel on either side, I do not think that the contentions urged by the petitioner can be accepted. The words 'amount due is less than 20% of the principal amount and the interest thereon' clearly means the total amount due after discharging the liability upto 80%. W.A.2186/2016

There is no ambiguity to the words used in the statute to have a different interpretation. If this interpretation is not given to Section 31 (j), Section 13 (1) and (2) and other measures will become meaningless. There is no legal basis for the contentions urged by the petitioner."

5. We have gone through the impugned judgment, grounds of

writ appeal and other material on record and holds that no prima facie

case is made out for admission.

Writ appeal is dismissed.

Sd/-

S. Manikumar, Chief Justice

Sd/-

Shaji P. Chaly, Judge sou.