Sujatha vs State Of Kerala
2022 Latest Caselaw 9849 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 31ST DAY OF AUGUST 2022 / 9TH BHADRA, 1944

                        WA NO. 1268 OF 2022

 AGAINST THE JUDGMENT IN WP(C) 23710/2022 OF HIGH COURT OF KERALA

APPELLANT/PETITIONER:

          SUJATHA
          W/O.REGHU, ASHTAPATHI, THODIYOOR,
          KALLELI BHAGAM P.O., KARUNGAPPALLY,
          KOLLAM - 690 519.

          BY ADVS.
          P.SIVARAJ
          R.SUDARSANA DEVI
          I.P.VARGHESE
          M.M.LAIJU NISSA
          M.MEHAR FARSANA


RESPONDENTS/RESPONDENTS:

    1     STATE OF KERALA,
          REPRESENTED BY SECRETARY TO SCHEDULED CASTE/
          SCHEDULED TRIBE DEVELOPMENT (A) DEPARTMENT,
          GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695 001.

    2     THE DISTRICT COLLECTOR,
          KOLLAM AS CHAIRMAN OF THE COMMITTEE UNDER
          SCHEME FOR REHABILITATING HOMELESS AND LANDLESS
          SCHEDULED CASTE COMMUNITY, KOLLAM - 691 013.

    3     THE DISTRICT OFFICER,
          COMMITTEE UNDER SCHEME FOR REHABILITATING
          HOMELESS AND LANDLESS SCHEDULED CASTE COMMUNITY,
          KOLLAM - 691 013.

    4     THE AUTHORISED OFFICER
          CANARA BANK, ANANTHAVALLEESWARAM BRANCH,
          KOLLAM - 691 013.
 W.A.No.1268 of 2022
                                    2




    5        KABEERSHA E.,
             ADVOCATE, K/66/2015,
             KOLLAM BAR ASSOCIATION,
             KOLLAM - 691 013.

             DR. PAULY MATHEW MURICKEN, SC


      THIS    WRIT    APPEAL   HAVING     COME   UP    FOR    ADMISSION   ON
31.08.2022,     THE    COURT   ON   THE    SAME       DAY    DELIVERED    THE
FOLLOWING:
 W.A.No.1268 of 2022
                                  3


                           JUDGMENT

Dated this the 31st day of August, 2022

S.Manikumar, C.J.

Before the writ court, petitioner in W.P.(C)No.23710 of

2022 has sought for the following reliefs:

"i) to issue a writ of certiorari or any other appropriate writ, order or direction calling for records leading to Ext.P3 and quash the same.

ii) to declare that Ext.P3 notice is not binding upon the petitioner as the same is an offshoot of a proceeding initiated based on a bogus, illegal and legally unsustainable claim by the 4 th respondent bank before the Chief Judicial Magistrate Court, Kollam in MC No.100/2022;

iii) to issue a writ of mandamus or any other appropriate writ, order or direction commanding and compelling the respondents not to proceed against the property owned by the petitioner and take physical possession of the same to an extent of 02.02 Ares (4.99 Cents) of property and the building contained in Re-Sy.No.178/3- 3, 178/3-4-1, Block No.14 of Kallelibhagam village, Karunagappally Taluk, Kollam district as per Ext.P3 notice."

2. Short facts leading to the filing of the writ petition

are as under:

W.A.No.1268 of 2022

The petitioner is a Scheduled Caste woman living below the

poverty line. Under the Scheme for the Rehabilitation of the

Landless and Homeless Scheduled Castes by the Kollam

Selection Committee chaired by the District Collector, Kollam

(2nd respondent herein), she was assigned with 2.02 ares of

landed property. Thereafter she availed a loan from the

Canara Bank - 4th respondent. Since the loan amount was

defaulted, the Bank issued Exhibit P3 notice dated 07.07.2022

under the Securitisation and Reconstruction of Financial

Assets and Enforcement of Security Interest Act, 2002, asking

the petitioner to clear off the debts within 15 days and in

default, to surrender the vacant possession of the secured

assets as he is empowered to take physical possession of the

secured assets consisting of 02.02 Ares (4.99 cents) of

property and the building contained in Re-Sy.No.178/3-3,

178/3-4-1, Block No.14 of Kallelibhagam Village,

Karunagappally Taluk, Kollam District. Challenging the

legality and correctness of Exhibit P3 notice, writ petition was

filed.

W.A.No.1268 of 2022

3. Exhibit P3 challenge before the learned single Judge

is a notice dated 07.07.2022 issued by the learned Advocate

Commissioner pursuant to the orders made in M.C.No.100 of

2022 dated 31.05.2022 on the file of the Chief Judicial

Magistrate Court, Kollam.

4. Respondents contested the writ petition before the

writ court, on the grounds inter alia that the mortgage was

executed for loan and consequent to the declaration of the

loan account as Non Performing Asset (NPA), proceedings

were taken for recovery of the outstanding amount with

interest, which necessitated the Bank to file an application

under section 14 of the SARFAESI Act, 2002.

5. Having heard the learned counsel for the parties and

also the submission of the learned counsel for the petitioner

that the petitioner may be given an opportunity to repay the

outstanding amount in instalments, writ court, vide judgment

in W.P.(C)No.23710 of 2022 dated 29.07.2022, ordered thus:

"6. Having heard the learned counsel for the petitioner and the learned counsel appearing for the respondent bank, I am of the view that there is W.A.No.1268 of 2022

considerable merit in the contention taken by the learned counsel for the respondent bank that there is absolutely no restriction in creating a mortgage in respect of the property conveyed to the petitioner through Ext.P2 document. Firstly, it must be noticed that there is absolutely no restriction placed on the right of the petitioner to mortgage or sell the property in Ext.P2. Further the petitioner has no case that she had created the mortgage without being aware the stipulation in Ext.P1 Government order that the property allotted under the scheme referred to above cannot be mortgaged or sold. Even if such a contention were to be raised, considering the terms of the Government order dated 07-07-2010, the petitioner cannot any longer contend that the land allotted under the scheme referred to above could not have been mortgaged with the respondent bank. Further, after having availed a credit facility by mortgaging certain item of property, the document of title to which does not indicate any restriction on any right of the petitioner either to mortgage or sell the land, the petitioner cannot turn around and say that the land in question could not have been mortgaged. Therefore the contention raised by he petitioner that there was no valid mortgage and consequently the proceedings under the SARFAESI Act are incompetent is rejected.

7. Having regard to the circumstances of the case and the situation now prevailing, apart from the submissions made as recorded above, I am of the view W.A.No.1268 of 2022

that the petitioner can be granted an opportunity to repay the outstanding amount in twenty (20) instalments.

8. Accordingly, there will be a direction to the respondent bank to accept repayment of the entire outstanding amount of Rs.11,69,752/- along with bank charges from the petitioner on the following conditions:

(i) The outstanding amount of Rs.11,69,752/- together with any accrued interest/costs shall be repaid in twenty (20) equated monthly instalments.

(ii) The first instalment shall be paid on or before 30-08-

2022 and subsequent instalments shall be paid on or before 30th of every succeeding month.

(iii) In the event of default of any one instalment, the respondent bank shall be entitled to proceed in accordance with law.

(iv) In order to enable the petitioner to repay the entire amounts, all coercive proceedings shall be kept in abeyance."

6. Being aggrieved, instant writ appeal is filed on the

grounds inter alia that the Government Order No.40/89/SC-ST

relied on by the learned single Judge is not applicable to the

facts of this case. For brevity, ground C is reproduced:

"C. Even the stamp duty was exempted for registration of Ext.P2 sale deed. As per the conditions in Ext.P1 GO, the beneficiaries under the Scheme do not have the right to sell W.A.No.1268 of 2022

or to mortgage or to rent out or to transfer the beneficial property to third parties."

7. Attention of this court was also invited to clause (3) of

the guidelines issued for implementation of the Scheme for

the Rehabilitation of the Landless and Homeless Scheduled

Castes, translated version of which reads thus:

"3) Land and home received by the benefactors under this scheme cannot be sold, mortgaged, leased out or transferred to any other. But after the death of benefactor, can be transferred to one of his legal heirs by way of succession."

8. Though Mr. P. Sivaraj, learned counsel for the

appellant made submissions on the above grounds, ultimately

he submitted that considering the plight of the appellant,

time for payment of the balance amount with interest, be

extended. Submission of the learned counsel is placed on

record.

9. At this juncture, it is noticed that though the

impugned Exhibit P3 notice dated 07.07.2022 issued by the

learned Advocate Commissioner was challenged before the W.A.No.1268 of 2022

writ court, opportunity to pay the outstanding amount has

been made. For brevity, paragraph Nos.4 and 7 of the

judgment made in W.P.(C)No.23710 of 2022 dated 29.07.2022

are reproduced:

"4. Faced with this situation the learned counsel for the petitioner states that the petitioner may be given an opportunity to clear the outstanding amount in installments."

"7. Having regard to the circumstances of the case and the situation now prevailing, apart from the submissions made as recorded above, I am of the view that the petitioner can be granted an opportunity to repay the outstanding amount in twenty (20) instalments."

10. Posed with a question as to whether the Bank would

be willing to extend the period for payment of loan amount,

Mr.Pauly Mathew Muricken, learned standing counsel for the

Bank submitted that the payment can be made in 30 equated

instalments.

11. Per contra, learned counsel for the appellant

submitted that the said period may be extended to 40

equated instalments.

W.A.No.1268 of 2022

12. As stated supra, before the writ court, learned

counsel had requested for instalment facility, which fact has

also been taken note of. Even before this court, besides

assailing the correctness of the judgment, appellant has

sought for extension of time. Bank has agreed for payment of

the outstanding amount with interest in 30 equated monthly

instalments.

13. Remedy under Article 226 is only discretionary.

Court cannot alter the terms of contract already entered into

between the parties. In the case on hand, loan has been

obtained and that for default in payment, the same has been

declared as NPA on 03.11.2020. Steps have been taken under

the SARFEASI Act, 2002 and an order has been passed by the

learned Chief Judicial Magistrate, Kollam in M.C.No.100 of

2022 dated 31.05.2022. Consequent to which, Exhibit P3

Advocate Commissioner's notice has been issued. Considering

the above fact and particularly taking note of the submission

of the learned counsel for the appellant that the outstanding

amount would be repaid if sufficient instalments are given, in W.A.No.1268 of 2022

exercise of the discretionary jurisdiction under Article 226 of

the Constitution of India, we only modify and order that the

outstanding amount together with interest should be repaid

in 30 equated monthly instalments; the first of which shall be

paid on or before 30.09.2022 and the subsequent instalments

shall be paid on or before the 30 th of every succeeding

months.

14. Condition Nos.(iii) and (iv) of the judgment in W.P.

(C)No.23710 of 2022 dated 29.07.2022 will remain intact.

With the above modification, writ appeal is disposed of.

Pending interlocutory applications, if any, shall stand

closed.

Sd/-

S.Manikumar Chief Justice

Sd/-

Shaji P.Chaly Judge vpv W.A.No.1268 of 2022

APPENDIX OF WA 1268/2022

PETITIONER ANNEXURES

Annexure 1 TRUE COPY OF THE G.O.(RT) NO.2234/2010/LSGD DATED 07/07/2010 ISSUED BY THE LOCAL SELF GOVERNMENT DEPARTMENT.

//TRUE COPY//

P.A. TO JUDGE