Hdb Financial Services Limited vs Parthas Textiles
2021 Latest Caselaw 8989 Ker

WA.No. 411 OF 2021              -1-

               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 18TH DAY OF MARCH 2021 / 27TH PHALGUNA, 1942

                          WA.No.411 OF 2021

  AGAINST THE JUDGMENT IN WP(C) 25105/2020(K) OF HIGH COURT OF
                             KERALA

APPELLANT/S:

                HDB FINANCIAL SERVICES LIMITED
                2ND FLOOR, KALLUMKAL BUILDING, COLONY STOP,
                VAZHAKKALA, THRIKKAKARA P.O., KAKKANAD, KOCHI-682
                021 REPRESENTED BY ITS MANAGER (LEGAL).

                BY ADV. SRI.P.PAULOCHAN ANTONY
RESPONDENT/S:

       1        PARTHAS TEXTILES
                P.B.NO.-1774, M.G.ROAD, JOSE JUNCTION, ERNAKULAM-
                682 016 REPRESENTED BY ITS MANAGING PARTNER-
                PRAVEEN RAJ RAJENDRAN.

       2        NATIONAL CREDIT GURANTEE TRUSTEE COMPANY LTD.
                SWAVALAMBAN BHAVAN, C-11, G-BLOCK, BANDRA-KURLA
                COMPLEX, BANDRA EAST, MUMBAI-400 051 REPRESENTED
                BY ITS COMPANY SECRETARY.

       3        THE RESERVE BANK OF INDIA
                21ST FLOOR, CENTRAL OFFICE BUILDING, SHAHID BHAGAT
                SINGH ROAD, MUMBAI-400001. REPRESENTED BY ITS
                CHIEF GENERAL MANAGER

              R1 BY ADV. SRI.C.AJITH KUMAR
              R2 BY ADV. SHRI.P.VIJAYAKUMAR, ASG OF INDIA
OTHER PRESENT:

              SRI.C.AJITH KUMAR FOR R1, SRI.P.VIJAYAKUMAR ASG
              FOR R3
     THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON
18.03.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WA No. 411 OF 2021                   -2-




                             JUDGMENT

Dated this the 18th day of March, 2021

Shaji P. Chaly, J.

Respondent No. 1 in W. P. (C) No. 25105 of 2020 is the

appellant challenging the judgment of the learned Single Judge dated

27.11.2020 whereby the writ petition was disposed of with the

following directions:-

"14. Accordingly, the 1st respondent is directed to consider the application of the petitioner for extension of ECLGS under Ext.P1 and take a decision on the application in the light of the observations made hereinabove, expeditiously. The 1st respondent shall also consider the claim of the petitioner for resolution framework for Covid-19 related stress and for implementation of a resolution plan, in accordance with law and in accordance with the Rules and Scheme, if any, made by the 3 rd respondent in that behalf.

2. Brief material facts for the disposal of the writ appeal are as

follows:-

Writ petitioner is a partnership firm engaged in the retail

business of textiles. The writ petitioner approached the writ court due

to the inaction on the part of the appellant herein to sanction the

eligible Emergency Credit Line Guarantee Scheme (ECLGS)

envisaged by the National Credit Guarantee Trustee Company Ltd.,

the 2nd respondent, for enabling the eligible borrowers to restart their

business in the wake of Covid - 19 pandemic.

In fact, writ petitioner is enjoying a business loan with a limit of

Rs. 2,50,00,000/- from the 1st respondent, and according to the

petitioner, he has been regular in repaying the loan liabilities till

March, 2020, and the last remittance effected was Rs. 3,37,337/- on

09.03.2020. According to the petitioner, since March 2020, due to the

Covid -19 pandemic, the business of the petitioner has been largely

affected and finds it difficult to repay the loan availed from the 1 st

respondent. It was accordingly taking into account the difficulties

faced by the loanees, the ECLGS Scheme and modified Schemes were

issued by the National Credit Guarantee Company Ltd.

Taking advantage of the situation, as per Exts. P1 and P2 and

other circulars issued by the Reserve Bank of India, petitioner has

submitted an application seeking benefits of the Scheme. However,

Ext. P7 application submitted for the purpose was not considered by

the appellant and it was accordingly that the writ petition was filed.

3. The learned Single Judge after taking into account the

benefits of the Scheme and other aspects put forth by the rival parties

had arrived at the conclusion that the petitioner is entitled to get the

benefit of the Scheme. Anyhow, a review petition was filed by the writ

petitioner as R. P. No. 994 of 2020, which was dismissed as per order

dated 08.02.2020, in view of the subsequent development during the

pendency of the review petition.

4. The learned Single Judge while appreciating the rival

submissions had found that the difficulties expressed by the appellant

bank was in respect of identification of mortgaged property of the

petitioner, however found that the loan was advanced by mortgaging

the very same property in the year 2017, and it was also found that as

per clause 2 of Ext. P1 Scheme launched by the 2 nd respondent, it was

made clear that no additional collateral shall be asked for additional

funding under ECLGS.

5. Anyhow, after appreciating the entire aspects, the learned

Single Judge only directed the appellant to consider the application of

the petitioner for extension of the Scheme benefits under Ext. P1,

taking into account the observations made in the judgment. The

appellant was also directed to consider the claim of the petitioner for

resolution framework for Covid -19 related stress, and for

implementation of a resolution plan, in accordance with law, and

taking into account the provisions of the beneficial scheme.

6. On going through the judgment, it is clear that the objections

raised by the appellant were considered by the learned Single Judge,

taking into account the provisions of Ext. P1, and has arrived at the

conclusion that the writ petitioner was entitled to the benefit of the

Scheme. Legality and correctness of the said judgment is challenged

basically contending that the mortgaged property in question was

unable to be identified. However when the appeal came up for

admission, it was submitted by the learned counsel for the appellant

that the writ petitioner may be directed to produce a sketch pertaining

to the subject property, enabling the appellant to identify the

mortgaged property. Accordingly we issued a direction and two

sketches are produced along with memos dated 12.03.2021 and

15.03.2021, with copy to the appellant counsel.

7. We have heard learned counsel appearing for the appellant

Sri. Paulochan Antony and Sri. C. Ajithkumar for the 1 st respondent

and perused the pleadings and material on record.

8. The sole question to be considered is whether any manner of

interference is warranted to the judgment of the learned Single Judge.

We have extensively considered the grievance of the appellant that,

due to the peculiar nature of the property, the boundaries are

unidentifiable. But it is surprising to note that the very same property

was taken as a mortgage by the appellant bank to advance the loan in

the year 2017, and so far the appellant bank has raised any dispute

with respect to the mortgaged property, of any manner whatsoever

nature.

9. Be that as it may, the apprehension of the appellant bank was

only in respect of identification of the mortgaged property since there

was no sketch produced. Anyhow, as per the directions issued by this

Court, the writ petitioner has produced a sketch drawn by a certified

Surveyor, and therefore the appellant bank cannot now contend that it

will be difficult for them to identify the property.

10. Moreover, learned counsel for the bank has produced before

us the sale deed of the mortgaged property and we find that in the

schedule of the sale deed the description of the mortgaged property is

given with appropriate measurements from point to point in regard to

the mortgaged property.

11. Therefore, we are of the considered opinion that the

objections raised by the appellant bank, in regard to the identity of the

property, are only perfunctory in nature, which has no much basis to

be interfered in a well considered judgment rendered by the learned

Single Judge; and added to that the direction was only to consider the

application submitted by the writ petitioner, seeking to extend the

benefit of Ext. P1 Scheme, taking into account the findings rendered

and observations made in the judgment.

12. In that view of the matter, we do not think that the appellant

bank has made out any case of jurisdictional error, or other legal

infirmities, justifying interference of this Court in an intra court appeal

filed under Section 5 of the Kerala High Court Act, 1958. Needless to

say, the appeal fails and accordingly it is dismissed.

However, in view of the time lag by and between the judgment

of the learned Single Judge and this day, we direct the appellant bank

to consider the application, at the earliest, and at any rate within a

week from the date of receipt of a copy of this judgment, taking into

account all attendant circumstances, the documents already produced

by the writ petitioner, and the sketch produced in the appeal with copy

to the appellant bank, since we are informed that the last date of the

scheme is 31-03-2021.

Sd/-

S. MANIKUMAR CHIEF JUSTICE

Sd/-

SHAJI P. CHALY JUDGE

Eb

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P. A. TO JUDGE