Sheeba Abdul Rasheed vs The Assistant General Manager
2021 Latest Caselaw 7778 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM

                               PRESENT

                 THE HONOURABLE MR. JUSTICE A.M.BADAR

     FRIDAY, THE 05TH DAY OF MARCH 2021 / 14TH PHALGUNA, 1942

                       WP(C).No.5794 OF 2021(Y)


PETITIONER:

               SHEEBA ABDUL RASHEED
               AGED 46 YEARS
               W/O MOHAKMED ABDUL RASHEED,CHERALAKAYIL HOUSE,
               VELIYAMKODE.P.O, MALAPPURAM-679579.

               BY ADVS.
               SRI.K.R.AVINASH (KUNNATH)
               SRI.ABDUL RAOOF PALLIPATH

RESPONDENTS:

      1        THE ASSISTANT GENERAL MANAGER
               (AUTHORIZED OFFICER),THE PONNANI CO-OPERATIVE URBAN
               BANK LIMITED,HEAD OFFICE,C.V.JUNCTION,PONNANI,
               MALAPPURAM-679577.

      2        THE BRANCH MANAGER,



     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
05.03.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C).No.5794 OF 2021(Y)

                                      2

                                  JUDGMENT

Dated this the 5th day of March 2021

Heard the learned counsel for the petitioner. It is argued on

behalf of the petitioner that the petitioner is a house wife who had

availed loan from the 2nd respondent Bank by mortgaging 20 cents of

her property. However, that loan became non-performing asset

because of adverse financial conditions faced by the petitioner. It is

argued by the learned counsel for the petitioner that demand notice as

well as possession notice came to be issued as per the provisions of

the SARFAESI Act and the petitioner had approached the Bank for

grant of facility of regularization of the loan account. However, such

request was not accepted by the respondent Bank. It is argued that

the petitioner had received a sale notice dated 22.01.2020 issued by

the 1st respondent under Rule 8(5) of the Security Interest

(Enforcement) Rules, 2002 proposing sale of the mortgaged property

for recovery of the secured debt. The learned counsel further argued

that the petitioner was not served with any notice with respect to such

taking of physical possession by the secured creditor. The notice at

Ext.P1 shows that the secured asset is valued only at Rs.20,00,000/-

and reserve price is fixed at Rs.18,00,000/-. This valuation is low. The

possession notice was not served on the petitioner and therefore, the WP(C).No.5794 OF 2021(Y)

notice of sale is required to be declared as illegal and the petitioner be

granted instalment facility.

2. I have considered the submissions so advanced.

3. The petition is with the following prayers.

(i). declare that Ext.P1 notice for sale issued by the 1 st respondent is illegal.

(ii). Issue a writ of Certiorari or such other writ or order and thereby set aside Exhibit P1 notice for sale.

(iii). Issue a writ of mandamus or such other writ or order directing the respondents to drop all other proceedings pursuant to Exhibit P1 notice for sale.

(iv). Issue a writ of mandamus or such other writ or order directing the respondents to provide the petitioner an opportunity to clear the Secured Debt in loan account No:ML- 700 with the 2nd respondent in instalments which may be fixed by this Hon'ble Court.

(v). Grant such other order that this Hon'ble Court may deem fit and proper in the facts and circumstances of this case.

4. The pleadings made in the petition shows that initially

demand notice was served under Section 13(2) of the SARFAESI Act

and subsequently, possession notice under Section 13(4) of the said

Act was also served on the petitioner and the petitioner approached

the 2nd respondent Bank for instalment facility. Pleadings made in the

petition also shows that the respondent Bank rejected that request for

grant of instalment facility.

5. On this back drop, what is sought to be challenged in the WP(C).No.5794 OF 2021(Y)

instant petition is notice for sale at Ext.P1 issued under Rule 8(5) of

the Security Interest (Enforcement) Rules, 2002 on the ground that

the petitioner was not served with any notice for taking physical

possession of the secured asset. It is thus clear that steps taken by

the secured creditor under the SARFAESI Act are being challenged in

the instant petition. In the light of judgment of the Hon'ble Apex

Court in the matter of Authorized Officer, SBT & Another Vs.

Mathew K.C. ((2018) 3 Supreme Court Cases 85)(DB), the

petition as such cannot be validly entertained by this Court.

So far as instalment facility is concerned, this aspect lies with the

discretion of the financial institute who had advanced loan. The

petitioner was already having facility of instalments which the

petitioner failed to honour. This Court cannot force the financial

institute to grant instalments when such facility was granted and not

complied by the petitioner. What is sought to be prayed by prayer

clause (iv) is regularization of the loan which is solely the prerogative

of the financial institution. In this view of the matter, there is no merit

in the petition and the same is dismissed.

Sd/-

A.M.BADAR Nsd //true copy// JUDGE PA to Judge WP(C).No.5794 OF 2021(Y)

APPENDIX PETITIONER'S/S EXHIBITS:

EXHIBIT P1 TRUE COPY OF THE NOTICE FOR SALE REF:SARFAESI/14/VKD/ML-700/2017-2018 DATED 22.01.2021 ISSUSED BY THE 1ST RESPONDENT WITH TRANSLATION.