M Seena vs The Authorized Officer
2021 Latest Caselaw 17935 Ker

W.A.No.1089 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
WEDNESDAY, THE 1ST DAY OF SEPTEMBER 2021 / 10TH BHADRA, 1943
                         WA NO. 1089 OF 2021
   AGAINST THE ORDER/JUDGMENT IN WP(C) 13017/2021 OF HIGH
                      COURT OF KERALA, ERNAKULAM
APPELLANT/PETITIONER:

             M SEENA,
             AGED 52 YEARS
             PROPREITOR OF MADATHIL TIRE TREADING SITUATED AT
             G.M. NIVAS, REGUNATHANPURAM, NEAR PALACHIRA,
             VARKALA, PIN-695 143.
             BY ADVS.
             R.RAJESH (VARKALA)
             M.KIRANLAL
             MANU RAMACHANDRAN
             T.S.SARATH


RESPONDENT:

             THE AUTHORIZED OFFICER,
             UNDER SECURITIZATION ACT, STATE BANK OF INDIA,
             STRESSED ASSET RECOVERY BRANCH, LMS COMPOUND,
             OPP. WEST MUSEUM GATE, VIKAS BHAVAN, P.O,
             THIRUVANANTHAPURAM, PIN-695 033


             BY ADV. SRI.TOM K. THOMAS


      THIS    WRIT    APPEAL   HAVING     COME   UP    FOR    ADMISSION   ON
01.09.2021,     THE    COURT   ON   THE     SAME      DAY    DELIVERED    THE
FOLLOWING:
 W.A. No. 1089/2021                     :2:




                                    JUDGMENT

S. MANIKUMAR,CJ.

Before the writ court appellant/petitioner has sought for a writ of

mandamus directing the respondents therein to allow the appellant to pay

the rearranged due amount of Rs.6,87,800/- (1,70,000 - 8,57,800/-

February and March Instalments) in monthly instalments.

2. Adverting to the rival submissions, writ court, by judgment dated

13th July, 2021 in W.P.(C) No.13017/2021, has declined to grant the relief.

For brevity, operative portion of the judgment is reproduced:

"To grant an instalment and to settle the loan by granting benefit of

one time settlement is the discretion of the creditor as per the scheme

floated by it. If the scheme is not providing for any such extension of

payment of 3rd instalment as seen from the statement of the

respondent, this Court would not be in a position to extend the time for

effecting payment of 3rd instalment by the petitioner. As such, there is

no question of issuing mandamus to the respondent. In this view of

the matter, the petition is devoid of merit and the same is accordingly

dismissed."

3. Being aggrieved, instant writ appeal is filed on the grounds

inter alia that the writ court has failed to consider that the discretion

exercised by the bank is unreasonable. Added further, Mr.R.Rajesh,

learned counsel for appellant, contended that petitioner has already

remitted Rs.1,70,000/- within the stipulated time, but due to the

second wave of COVID-19, the next installment could not be paid, in

time, which the writ court has failed to consider. According to him, writ

court has failed to consider that the respondent/bank has discretion to

consider the case of the appellant on the facts and circumstances of this

case. In the above circumstances, she prayed for reversal of the

judgment impugned.

4. Per contra, Mr.Tom K.Thomas, learned Standing Counsel for

bank submitted that, the bank has announced a scheme for One Time

Settlement (OTS) - RINN SAMADHAN 2020-2021 and as per the Scheme,

20% of the amount has to be paid. As per Exhibit P1, appellant is bound

to pay an amount of Rs.1,70,000/- in two instalments and a further

instalment of Rs.85,000/- on or before 30.04.2021.

5. According to the learned Standing Counsel, the balance amount

together with applicable interest has to be paid within a period of six

months. However, the appellant did not pay the remaining amount within

the time as per the Scheme in force.

6. Learned Standing Counsel for the bank further submitted that the

Scheme is applicable universally to all the borrowers, and there cannot be

any deviation to the scheme.

7. The appellant, under the Scheme was already provided with an

opportunity to settle the amount due and payable to the bank and that the bank

cannot make any changes to the terms and conditions of the scheme, in order to

suit the convenience of an individual borrower. He further contended

that the writ court, after considering the rival submissions, has rightly

declined the relief prayed for. In the above said circumstances, he

prayed to dismiss the writ appeal.

8.Heard learned counsel for the parties and perused the

pleadings and materials on record.

9. Admittedly, as per the One Time Settlement (OTS) - RINN

SAMADHAN 2020-2021, appellant has paid 20% of the amount under

the Scheme. She has failed to pay the third installment on 30.4.2021

and therefore, sought for extension of time. As the Scheme is

universally applicable to all the borrowers, as rightly contended by the

learned counsel for the bank, there cannot be any deviation to the

Scheme. Discretion exercised is as per the Scheme. Unless the

Scheme provides for any extension of time for effecting payment,

court cannot issue a mandamus directing the bank to extend the time.

Moreover, in contractual matters, court cannot issue any direction, as

prayed for.

10. In the light of the above discussion, we are not inclined to

interfere with the judgment made in W.P.(C) No.13017/2021 dated

13th July, 2021. Accordingly, instant writ appeal is dismissed.

Sd/-

S. MANIKUMAR, CHIEF JUSTICE.

Sd/-

SHAJI P. CHALY, JUDGE.

smv