The Regionalmanager, State Bank ... vs Bindu Vijayakumar
2022 Latest Caselaw 1480 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 2nd day of February 2022 / 13th Magha, 1943
                             WA NO. 167 OF 2022

    AGAINST JUDGMENT DATED 3-1-2022 IN WP(C) 19672/2021 OF THIS COURT.

                                   ---

APPELLANTS/RESPONDENTS:

     1.THE REGIONALMANAGER, STATE BANK OF INDIA,RAVI'S ARCADE,
     KOLLAM,PIN-691013.
     2.THE CHIEF MANAGER,STATE BANK OF INDIA,
     STRESSES ASSETS RECOVERY BRANCH (S.A.R.B.),
     LMS COMPOUND,OPPOSITE MUSEUM WEST GATE,
     VIKAS BHAVAN (P.O.),THIRUVANANTHAPURAM,PIN-695033.
     3.THE BRANCH MANAGER,STATE BANK OF INDIA,
     PATHANAPURAM BRANCH,KOLLAM,PIN-689695.

BY ADV.SRI.JAWAHAR JOSE

RESPONDENT/WRIT PETITIONER:

     BINDU VIJAYAKUMAR,AGED 49 YEARS,W/O.VIJAYAKUMAR,SIVASHYLAM,
     EDUKKADOM (P.O.),EZHIKONE,KOLLAM,PIN-691505.

BY ADV.V.GOPAN

     Prayer for interim relief in the Writ Appeal stating that in the
circumstances stated in the appeal memorandum, the High Court be pleased
to stay the direction in the judgment of learned single judge dated
3-1-2022 in W.P.(C) No.19672/2021, pending the disposal of Writ Appeal.
     This Writ Appeal coming on for orders on 02/02/2022 upon perusing
the appeal memorandum, the court on the same day passed the following:

                                                                      P.T.O.
 EXT.P6:PHOTOCOPY OF THE REPRESENTATION DATED 18.9.2021

SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT.

EXT.P7:PHTOCOPY OF THE REPRESENTATION DATED 18.9.2021

SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT.

ANNEXURE A2:TRUE COPY OF THE ORDER DATED 6-5-2021

BEARING NUMBER G.O(RT) 404/2021/DMD.

ANNEXURE A3: TRUE COPY OF THE ORDER DATED 14-5-2021



BEARING NUMBER G.O(RT) 416/2021/DMD.

ANNEXURE A4: TRUE COPY OF THE ORDER DATED 21-5-2021



BEARING NUMBER G.O(RT) 432/2021/DMD.

ANNEXURE A5:TRUE COPY OF THE ORDER DATED 29-5-2021



BEARING NUMBER G.O(RT) 444/2021/DMD.
             S.MANIKUMAR, C.J. & SHAJI P. CHALY, J.
          ----------------------------------
                       W.A.No.167 of 2022
          ----------------------------------
             Dated this the 2nd day of February, 2022

                             ORDER

S.MANIKUMAR, C.J.

Instant writ appeal is filed by the appellants/respondents in

the writ petition, being aggrieved by the judgment in W.P.

(C)No.19672/2021 dated 3.1.2022 directing the second respondent

in the writ petition (Chief Manager, State Bank of India, Stressed

Assets Recovery Branch, LMS compound, Near Museum West Gate,

Vikas Bahvan P O, Thiruvananthapuram) to dispose of Exts.P6 and

P7 representations filed by the petitioner, in the light of the

observations contained in the impugned judgment and grant a

limited extension of time for repayment of the balance amount

under the sanctioned OTS Scheme after imposing a reasonable

percentage of interest on the balance amount due from the

petitioner from 30.7.2021 till date of payment and also the period

within which the said payment must be made by the petitioner. W.A.NO.163 OF 2022 :: 2 ::

2. Assailing the correctness of the impugned judgment, Mr.Jawahar

Jose, learned Standing Counsel for the appellants - Bank, inter alia,

submitted that the judgment is contrary to the OTS Scheme, on the basis

of which the respondent was directed to pay the instalment. According

to the learned Standing Counsel, the OTS Scheme automatically expires

on the date of failure of the payment of any one of the instalments.

3. He further submitted that the learned Single Judge in the

impugned judgment observed that there was a total lock down in Kerala

from 8-5-2021 to 8-7-2021. But as per Annexures A2 to A5 Government

Orders, the lockdown was partial and not complete. According to the

Standing Counsel the interregnum lockdown between 8-5-2021 to 9-6-

2021 cannot be a reason for not making the repayment on 30-7-2021.

4. By inviting the attention of this court to the decisions reported

in Satyabrata Ghose v. Mugneeram Bangur (AIR 1954 SC 44); Alopi Parshad and

Sons v. Union of India (AIR 1960 SC 588); Naihati Jute Mills v. Khyaliram

Jagannath (AIR 1968 SC 522) and Energy Watchdog v. CERC (2017) 14 SCC 80,

learned Standing Counsel for the appellant Bank submitted that the

learned Single Judge failed to take note of the law declared by the W.A.NO.163 OF 2022 :: 3 ::

Hon'ble Apex Court in respect of the scope of 'impossibility' of

performance of contract as stipulated in Section 56 of the Contract Act.

5. Mr.V.Gopan, learned counsel for the respondent/writ

petitioner submitted that due to lockdown, he could not run the

business and thus did no pay the third instalment as per the OTS

Scheme. However, he paid Rs.15,00,000/- in two instalments. The

balance amount as per the OTS Scheme as on 30.7.2021 was

Rs.65,80,341/-. Though the respondent/writ petitioner made

continuous representations to the Bank as well as to the Grievance Cell

to address the non payment of OTS amount and to grant extension,

there was no response. Thus, respondent/writ petitioner was

constrained to prefer the writ petition.

6. Though the learned Standing Counsel for the Bank sought for

intervention of the interim judgment, Mr.V.Gopan, learned counsel for

the respondent/writ petitioner submitted that if the Bank works out the

interest to be paid for the period from 30.7.2021 till the date of payment

for the remaining portion of the 3rd instalment as on 30.7.2021 i.e.,

Rs.65,80,341/-, the respondent/writ petitioner is ready and willing to W.A.NO.163 OF 2022 :: 4 ::

remit the said amount within five days from the date of receipt of

intimation from the Bank.

7. Giving due consideration to the rival submissions, we are of the

view that no prejudice would be caused to Bank if the abovesaid amount

is paid by the respondent/writ petitioner within the stipulated time.

The appellant Bank is directed to workout the interest on the balance

amount of the third instalment i.e., Rs.65,80,341/- from 30.7.2021 as

expeditiously as possible and accordingly intimate the respondent/writ

petitioner for payment within five days from the date of such

intimation.

However, we make it clear that the order would be subject to the

result of the writ appeal.

sd/-

S.MANIKUMAR CHIEF JUSTICE

sd/-

SHAJI P. CHALY JUDGE jes

02-02-2022 /True Copy/ Assistant Registrar