Jose M.Kurian vs Pathanamthitta District Co ...
2021 Latest Caselaw 7373 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM

                               PRESENT

                 THE HONOURABLE MR. JUSTICE A.M.BADAR

   WEDNESDAY, THE 03RD DAY OF MARCH 2021 / 12TH PHALGUNA, 1942

                       WP(C).No.5230 OF 2021(C)

PETITIONER:

               JOSE M.KURIAN
               MADATHILKATTIL HOUSE, KARACKAL P.O., THIRUVALLA,
               PATHANAMTHITTA DISTRICT, PIN-689 108.

               BY ADVS.
               SRI.VARUGHESE M EASO
               SRI.VIVEK VARGHESE P.J.
               SHRI.SHAJI MATHEW N.M.

RESPONDENTS:

      1        PATHANAMTHITTA DISTRICT CO OPERATIVE BANK
               REPRESENTED BY ITS GENERAL MANAGER,
               PATHANAMTHITTA P.O., PATHANAMTHITTA DISTRICT-689 645.
      2        THE AUTHORIZED OFFICER,
               THE KERALA STATE CO-OPERATIVE BANK, ALAPPUZHA REGION
               OFFICE, ALAPPUZHA P.O., ALAPPUZHA DISTRICT,
               PIN-688 001.

      3        THE KERALA STATE CO-OPERATIVE BANK LTD.,
               REPRESENTED BY ITS MANAGING DIRECTOR, PB NO.6515,
               COBANK TOWES, PALAYAM, THIRUVANANTHAPURAM, KERALA,
               PIN-695 033.

      4        STATE OF KERALA,
               REPRESENTED BY THE SECRETARY, DEPARTMENT OF
               CO-OPERATION, SECRETARIAT,
               THIRUVANANTHAPURAM-695 001.

      5        JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES(GENERAL),
               DEPARTMENT OF CO-OPERATION, CIVIL STATION,
               PATHANAMTHITTA-689 645.

               R1-2 BY ADV. SRI.N.RAGHURAJ

OTHER PRESENT:
             SRI. GILBERT GEORGE CORREYA, SC.
             SMT.POOJA SURENDRAN, GOVT. PLEADER

     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
03.03.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 W.P.(C) No.5230/2021                  2


                                JUDGMENT

Dated this the 3rd day of March 2021

Heard both sides.

2. Learned counsel for the petitioner submits that the

petitioner is a farmer conducting small scale business along with

agricultural activity. He had availed a housing loan of

Rs.8.50 lakhs. However, the same could not be repaid and

therefore, the petitioner made a complaint before the

4th respondent-State of Kerala for granting benefits in the matter of

repayment of loan. Learned counsel for the petitioner drew my

attention to the communication at Ext.P4 sent by the Joint

Registrar to the Branch Manager of Kerala Bank referring to the

application and instructions of the Hon'ble Chief Minister to help

the applicant by allowing maximum less repayment of loan and

granting moratorium. With this, learned counsel for the petitioner

argued that because of the spread of Covid-19 pandemic, the

petitioner could not repay the loan in instalments and therefore, he

is desirous of getting 20 instalments for repayment of loan.

3. Learned counsel appearing for the respondent-financial

institution drew my attention to the judgment at Ext.P2 rendered

in the writ petition filed by the petitioner and submits that as the

petitioner has not complied with the judgment, he is not entitled

for any relief. It is also argued that even now the respondent-

financial institution is willing to show leniency to the petitioner.

According to the learned counsel for respondents 1 and 2/financial

institution, the petitioner had availed a loan on 08.10.2015 and it

was declared as non-performing asset on 13.01.2018, and on

01.11.2019, a demand notice under Section 13(2) of the SARFAESI

Act came to be issued and the overdue amount as of now is about

Rs.6.20 lakhs. It is further argued that in pursuant to the

judgment dated 04.02.2020 in W.P.(C) No.2177 of 2020 (Ext.P2),

the petitioner has only paid one instalment i.e on 10.03.2020.

4. Having considered the submissions so advanced, it

appears to me that this is not a fit case in which equitable relief

can be granted to the petitioner. The petitioner had approached

this Court by filing W.P.(C) No.2177 of 2020. Paragraphs 3 and 4

of the judgment rendered by this Court in the said writ petition on

04.02.2020 needs reproduction and they read thus:

"3. The learned counsel appearing for the respondents would submit on the basis of instructions that the total over dues to be cleared by the petitioner as on 31.12.2019 for regularizing the loan account is Rs.4,52,287/-, and that in case the petitioner gives up all his contentions in respect to

his claim that the subject property is an agricultural land under Sec.31(i) of the SARFAESI Act, then the respondent bank is prepared to give the petitioner time to clear the over dues in 6 equal monthly instalments, the first of which shall be payable on or before 10.3.2020, and the other 5 instalments shall be payable on or before the 10th of the respective month concerned, subject to the condition that the petitioner should also pay the applicable charges and interest thereon, and should also clear the regular EMIs in time.

4. In case the petitioner is willing for the aboveasaid terms and conditions now insisted by the respondent bank, then the petitioner may immediately approach the bank and inform the bank in writing and then avail the said offer now made by the respondents. In case the petitioner is interested to act upon the offer now made by the respondents, then the petitioner need not even wait for the formal issuance of this judgment, and may proceed to approach the respondent bank with all expedition and without any further delay".

Despite grant of relief of instalments to the petitioner, the

petitioner has failed to comply the offer given by respondents 1

and 2 on earlier occasion.

5. Be that as it may, the matter of availing financial

assistance is a contractual matter in which the court cannot force

the financial institution to regularise the loan. However, keeping

in mind the willingness on the part of respondents to grant

instalment facility to the petitioner again, this writ petition is

disposed of with the following directions:

The petitioner to pay 50% of the overdue amount of loan by

the end of this month to respondents 1 and 2 and he should pay

balance overdue amount in five equated monthly instalments

commencing from 15.04.2021. The petitioner should also pay the

EMIs regularly. If the petitioner complies with these directions

issued in pursuant to the statement made by the learned counsel

for respondents 1 and 2, then the respondents shall keep the

coercive action initiated under the SARFAESI Act against the

petitioner in abeyance. In the event of single default, respondents

1 and 2 shall be entitled to continue with the action under the

SARFAESI Act. No further extension of time to comply with these

directions shall be granted to the petitioner.

Sd/-

A.M.BADAR

JUDGE smp

APPENDIX PETITIONER'S EXHIBITS:

EXHIBIT P1 TRUE COPY OF THE CERTIFICATE ISSUED BY THE VILLAGE OFFICER PERINGARA DATED 21.01.2020 ALONG WITH ENGLISH TRANSLATION.

EXHIBIT P2 TRUE COPY OF JUDGMENT DATED 04.02.2020 IN WPC NO.2177 OF 2020 OF THIS HON'BLE COURT.

EXHIBIT P3 TRUE COPY OF THE MEDICAL CERTIFICATE DATED 09.02.2021 ISSUED BY DR.SAJI JOSE, MD DM (CMC VELLOORE), CONSULTANT CARDIOLOGIST AND VASCULAR SPECIALIST, MEDICAL MISSION HOSPITAL, THIRUVALLA, THE MEDICAL MISSION HOSPITAL, THIRUVALLA.

EXHIBIT P4 TRUE COPY OF PROCEEDINGS ISSUED BY THE 5TH RESPONDENT AS PER NO.CRB 259244/2021 DATED 22.02.2021 ALONG WITH ENGLISH TRANSLATION.

EXHIBIT P5 TRUE COPY OF THE POSSESSION NOTICE AFFIXED BY THE 2ND RESPONDENT IN THE PROPERTY OF THE PETITIONER UNDER THE PROVISIONS OF SARFAESI ACT, 2002.

RESPONDENTS' EXHIBITS: NIL.

True Copy

P.S to Judge

smp