Kunhammed. P.M vs Authorised Officer, South Indian ...
2022 Latest Caselaw 11281 Ker

                     IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                      PRESENT
                     THE HONOURABLE MR. JUSTICE GOPINATH P.
         FRIDAY, THE 2ND DAY OF DECEMBER 2022 / 11TH AGRAHAYANA, 1944
                             WP(C) NO. 35971 OF 2022


PETITIONERS:

     1        KUNHAMMED. P.M
              AGED 65 YEARS
              S/O PAKKROOTTY, SAFA KAVIL, KAVIL.P.O, NADAVANNUR,
              KOZHIKODE., PIN - 673614
     2        SUBAIDA.P.M
              AGED 62 YEARS
              W/O KUNHAMMED.P.M, SAFA KAVIL, KAVIL.P.O, NADAVANNUR,
              KOZHIKODE, PIN - 673614
              BY ADVS.
              P.N.MOHANAN
              C.P.SABARI
              AMRUTHA SURESH
              GILROY ROZARIO

RESPONDENTS:

     1        AUTHORISED OFFICER, SOUTH INDIAN BANK
              NADAVANNUR BRANCH, 1ST FLOOR, K.P.COMPLEX, ULLERI-PERAMBRA
              ROAD, NADAVANNUR, KOZHIKODE, KERALA, PIN - 673614
     2        BRANCH MANAGER, SOUTH INDIAN BANK
              NADAVANNUR BRANCH, 1ST FLOOR, K.P.COMPLEX, ULLERI-PERAMBRA
              ROAD, NADAVANNUR, KOZHIKODE, KERALA, PIN - 673614
              BY ADV. S. EASWARAN, STANDING COUNSEL

     THIS     WRIT    PETITION   (CIVIL)   HAVING   COME   UP   FOR   ADMISSION   ON
02.12.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WPC No.35971 of 2022
                                     2




                             JUDGMENT

Dated this the 02nd day of December, 2022

The petitioners have approached this Court being

aggrieved by the fact that proceedings are initiated

against the petitioners under the provisions of the

SARFAESI Act, 2002 to recover amounts due under

certain credit facilities availed by the petitioners. The

proceedings are at the stage of taking of physical

possession of the secured asset in proceedings under

Section 14 of the SARFAESI Act.

2. The learned counsel appearing for the

petitioner would submit that the default occurred only

on account of certain adverse circumstances including

the health condition of the 1st petitioner as is evident

from Ext.P4 discharge summary and connected

records. It is submitted that the 1 st petitioner was

conducting business abroad and huge amounts are

due from third persons and if these amounts are WPC No.35971 of 2022

received, the petitioners will be in a position to clear

the liability. It is submitted that the petitioners may

be granted some instalments to clear the liability. It is

also submitted that the 1st petitioner's right foot has

been amputated and if the petitioners are

dispossessed from their residential house, they will be

put to irreparable injury, prejudice and hardship.

3. The learned counsel appearing for the

respondent bank would submit that the present

outstanding amount is Rs.1,94,51,903.79 as on

28.11.2022. It is submitted that there is absolutely

no defect in the proceedings initiated by the bank and

that taking into consideration the health condition of

the 1st petitioner, the petitioners can be permitted to

clear the entire liability in some instalments. It is

pointed out that the petitioners have sought for only

fifteen instalments in the writ petition.

4. The learned counsel appearing for the

petitioners, in reply, would submit that the petitioners WPC No.35971 of 2022

had sought for fifteen instalments on the assumption

that the total liability was only about Rs.1.30 crores.

It is submitted that since the liability is now stated to

be nearly Rs.1.95 crores, the petitioners may be

given additional instalments to clear the liability.

5. Having heard the learned counsel for the

petitioner and the learned counsel appearing for the

respondent bank and having regard to the facts and

circumstances of the case, including the medical

condition of the 1st petitioner as is revealed from

Ext.P4, I am of the opinion that the petitioners can be

granted twenty two (22) instalments to clear the

entire liability.

6. Accordingly, there will be a direction to the

respondent bank to accept repayment of the entire

outstanding amount of Rs.1,94,51,903.79 along with

bank charges from the petitioners on the following

conditions:

(i) The outstanding amount of Rs.1,94,51,903.79 WPC No.35971 of 2022

together with any accrued interest/costs shall

be repaid in twenty (22) equated monthly

instalments;

(ii) The first installment shall be paid on or before

31.12.2022 and subsequent instalments shall

be paid on or before the last working day 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 petitioners to repay the

entire amounts, all coercive proceedings shall

be kept in abeyance;

The writ petition is disposed of as above.

Sd/-

GOPINATH P.

JUDGE SKP/02-12 WPC No.35971 of 2022

APPENDIX OF WP(C) 35971/2022

PETITIONERS' EXHIBITS:

EXHIBIT P1 A TRUE COPY OF THE NOTICE DATED 29.03.2021 ISSUED BY THE 2ND RESPONDENT EXHIBIT P2 A TRUE COPY OF THE NOTICE DATED 20.04.2021 ISSUED BY THE 2ND RESPONDENT EXHIBIT P3 A TRUE COPY OF THE NOTICE DATED 03.11.2022 ISSUED BY THE ADVOCATE COMMISSIONER APPOINTED BY THE CHIEF JUDICIAL MAGISTRATE COURT, KOZHIKODE IN CMP NO. 1125/2022 EXHIBIT P4 A TRUE COPY OF THE DISCHARGE SUMMARY OF IS ASTER MICC HOSPITAL EXHIBIT P5 A TRUE COPY OF THE COMPLAINT DATED 29.09.2021 BEFORE THE CHIEF MINISTER RESPONDENTS' EXHIBITS:NIL

TRUE COPY

P.A.TO JUDGE