M/S. Mir Realtors Pvt. Ltd vs The Federal Bank Ltd
2021 Latest Caselaw 18504 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

     WEDNESDAY, THE 8TH DAY OF SEPTEMBER 2021 / 17TH BHADRA, 1943

                         WA NO. 1134 OF 2021

 JUDGMENT DATED 02.08.2021 IN WP(C) 14634/2021 OF HIGH COURT OF KERALA

APPELLANT/PETITIONER:

           M/S. MIR REALTORS PVT. LTD.,
           1ST FLOOR, MM BUILDINGS, KALABHAVAN ROAD,
           ERNAKULAM-682 018, REPRESENTED BY ITS MANAGING DIRECTOR,
           MR. ARUN KUMAR K.
           BY ADVS.
           ABRAHAM MATHEW (VETTOOR)
           ANIL ABEY JOSE


RESPONDENTS/RESPONDENTS:

     1     THE FEDERAL BANK LTD.,
           REGD. OFFICE, FEDERAL TOWERS, BANK JUNCTION, ALUVA,
           ERNAKULAM DISTRICT, 683 101
     2     THE VICE PRESIDENT, THE FEDERAL BANK LIMITED,
           LCRD-ERNAKULAM DIVISION, GROUND FLOOR, FEDERAL TOWERS,
           MARINE DRIVE, ERNAKULAM - 682 031.
     3     THE REGISTRAR,
           NATIONAL COMPANY LAW TRIBUNAL, KOCHI BENCH, KAKKANAD-
           ERNAKULAM-682 030.


           R1 BY SRI.P.PAULOCHAN ANTONY, SC



      THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 08.09.2021, THE

COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 W.P.(C) No. 1134/2021                 :2:




              Dated this the 8th day of September, 2021.

                               JUDGMENT

S. MANIKUMAR,CJ.

Instant appeal is filed challenging the judgment dated 02.08.2021

in W.P.(C) No. 14634 of 2021, whereby a learned single Judge, after

considering the submissions and the materials on record, found that the

amounts agreed to be paid in terms of the compromise upto 31.07.2021

have not been paid and accodingly, in exercise of the discretion

conferred under Article 226 of the Constitution of India, granted liberty

to the appellant/writ petitioner to remit the graded instalments upto

31.08.2021 in terms of the compromise entered into between the parties

with simple interest at the rate of 11.10% on or before 31.08.2021.

Operative portion of the impugned judgment reads thus:

"3. The learned counsel for the bank pointed out that the petitioner has not remitted the instalments as agreed and as such, the compromise entered into by the petitioner with the bank stands cancelled. It was submitted by the counsel that it is on account of the said reason that the bank could not report the settlement before the NCLT. It was also submitted by the learned counsel that if the petitioner remits the amounts payable in terms of the compromise upto 31.07.2021 with simple interest before the said date, the bank is agreeable to revalidate the compromise and in that event, the bank may not have any objection in seeking adjournment in the proceedings

pending before the NCLT.

4. The learned counsel for the petitioner does not dispute the fact the amounts payable in terms of the compromise upto date have not been paid by them. On a query from the court, the learned counsel is not in a position to make a commitment as to the time limit within which the pending dues in terms of the compromise could be paid to the bank.

5. As noted, substantial amounts running to several crores are due to the bank from the petitioner. In a case of this nature, I do not think that the relief sought by the petitioner can be granted. Nevertheless, having regard to the totality of the facts and circumstances of the case, especially the fact that rights of parties with whom the petitioner has entered into contract for construction of apartments and other buildings would be affected detrimentally in the event of the admission of the proceedings instituted before the NCLT, I deem it appropriate to dispose of the writ petition granting liberty to the petitioner to remit the graded instalments upto 31.08.2021 in terms of the compromise entered into between the parties with simple interest at the rate of 11.10% on or before 31.08.2021. Ordered accordingly. Needless to say that if the petitioner remits the amounts as directed and continues to pay the remaining graded instalments, the bank shall revalidate the compromise. Needless also to say that in the event of the petitioner remitting the amounts as directed above and continuing to pay the remaining graded instalments, the bank shall not pursue the proceedings pending before the NCLT."

2. Learned counsel for the appellant made submissions with

reference to the grounds raised and further inviting the attention of this

Court to clause (6) of the Settlement of liabilities of the NPA account

dated 02.02.2021 executed between the parties, submitted that the first

instalment in terms of the joint compromise entered into between the

appellant and the Bank has been paid and that despite payment of the

first instalment of Rs.20 lakhs and Rs.8.7 lakhs towards arrears in a

connected loan account, the bank failed to report the settlement before

the NCLT in time and thus, NCLT would be proceeding further and

therefore, before the writ court appellant sought for a declaration that

the Registrar, National Company Law Tribunal, Kochi Bench, the 3 rd

respondent, is competent to proceed with Ext. P1 proceedings in the

light of Ext. P2 scheme drawn by the Kerala Real Estate Regulatory

Authority and Exts.P3 to P5 settlement and final order passed by the

Debt Recovery Tribunal-1, Ernakulam with respect to the liability

between the appellant and the Bank and for other reliefs.

3. Going through the materials on record, we are of the view that

the reliefs sought for on the basis of the averments cannot be granted by

the writ court; but the same could be a defence before the NCLT.

Despite contentious issues, writ court has granted indulgence by

permitting the appellant to remit the graded instalments on or before

31.08.2021, thus modifying the terms of the compromise as stated

supra to a limited extent. When this Court was not inclined to entertain

the appeal, Sri. Abraham Mathew Vettoor, learned counsel for the

appellant, submitted that liberty may be given to the appellant to raise

all the contentions raised in the writ petition as well as the writ appeal

before the NCLT.

Accordingly, this writ appeal is disposed of, granting liberty to the

appellant to raise all tenable contentions before the NCLT in accordance

with law.

sd/-

S. MANIKUMAR, CHIEF JUSTICE.

sd/-

SHAJI P. CHALY, JUDGE.

Rv

APPENDIX OF WA 1134/2021

PETITIONER'S ANNEXURE:

Annexure A1 A TRUE COPY OF THE INTERIM ORDER PASSED BY THE KRERA, THIRUVANANTHAPURAM IN I.A. NO. 68/2021 DATED 06.08.2021.

Annexure A2 A TRUE COPY OF THE LETTER BEARING NO. LCRD-

EKML/EKMA/ SAR2904 2020-21 DATED 08.02.2021 ISSUED BY THE RESPONDENT BANK.

RESPONDENTS' EXHIBITS: NIL

/True Copy/

PS to Judge.

rv