Kerala High Court
Mohammedali P vs The Board Director Of The Hdb ... on 24 February, 2022
WP(C) No.27754/2021 1/8
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS
Thursday, the 24th day of February 2022 / 5th Phalguna, 1943
WP(C) NO. 27754 OF 2021 (T)
PETITIONER:
MOHAMMEDALI P, AGED 55 YEARS, PUTHALATH HOUSE, KINALOOR, BALUSSERY,
KOZHIKODE-673 012.
RESPONDENTS:
1. THE BOARD DIRECTOR OF THE HDB FINANCIAL SERVICES LTD., GROUND FLOOR,
ZENITH HOUSE, OPPOSITE TO RACE COURSE, MAHALAKSHMI, MUMBAI-400 034.
2. AUTHORISED OFFICER, HDB FINANCIAL SERVICE LTD., 2ND FLOOR,
KALLUMAKKAL BUILDING, NEAR RELIANCE FRESH, ABOVE BATTA SHOW ROOM,
VAZHAKKALA, PADAMUGAL, THRIKKAKARA P.O., KOCHI-682 021.
3. MINISTRY OF MICRO SMALL AND MEDIUM ENTERPRISES, THROUGH ITS
SECRETARY, GOVERNMENT OF INDIA, UDHYOG BHAVAN, NEW DELHI-110 011.
4. UNION OF INDIA, REPRESENTED BY ITS SECRETARY, MINISTRY OF FINANCIAL
SERVICES, DEPARTMENT OF BANKING, GOVERNMENT OF INDIA, JEEVAN DEEP
BUILDING, PARLIAMENT STREET, NEW DELHI-110 001.
5. STATE OF KERALA, REPRESENTED BY ITS CHIEF SECRETARY, GOVERNMENT
SECRETARIAT, THIRUVANANTHAPURAM, KERALA, PIN-695 001.
6. *[V.PRIYA ADVOCATE COMMISSIONER, APPOINTED BY CHIEF JUDICIAL
MAGISTRATE COURT (CJM) COURT COMPLEX, CHEROOTTY ROAD, BEACH POST,
KOZHIKODE-673 032.]
7. STATION HOUSE OFFICER, KOZHIKODE TOWN POLICE STATION, KERALA-673
004.
8. *[BAR COUNCIL OF KERALA REPRESENTED BY ITS SECRETARY, CAMPUS
ERNAKULAM, BAR COUNCIL BHAVAN, HIGH COURT ROAD, KOCHI, KERALA-682
031.] *[RESPONDENTS 6 AND 8 DELETED FROM THE PARTY ARRAY AS PER
ORDER DATED 09/12/2021 IN I.A 1/21 IN WP(C) 27554/21]
WP(C) No.27754/2021 2/8
Writ petition (civil) praying inter alia that in the circumstances
stated in the affidavit filed along with the WP(C) the High Court be
pleased to :
a) To grant an ad-interim prohibitory injunction in favour of the
Plaintiff and against the Respondent NBFC restraining and prohibiting the
said Respondents, its agents, servants and privies from proceeding further
under SARFAESI Act, 2002 or any other Act including presenting any cheques
and further to restrain and prohibit the Respondent NBFC from taking
recourse to any precipitatory steps which will tilt or shake 'vinculum
juris, pendente lite' including an attempt to declare willful defaulter;
b) pass such further and other orders as the nature and
Circumstances of the cases may require;
This petition again coming on for orders upon perusing the petition
and the affidavit filed in support of WP(C) and this court's order dated
09/02/2022 and upon hearing the arguments of SMT. MARIA NEDUMPARA Advocate
for the petitioner, SRI.PAULOCHAN P. ANTONY Advocate for R1 & R2,
ASSISTANT SOLICTOR GENERAL OF INDIA for R3 & R4, and of GOVERNMENT PLEADER
for R5 & R7, the court passed the following:
WP(C) No.27754/2021 3/8
BECHU KURIAN THOMAS, J
..............................................
W.P.(C) No.27754 of 2021
.....................................
Dated this the 24 th day of February, 2022
ORDER
On 21.12.2021, this Court had issued an order not to
dispossess the petitioner for a period of six weeks, on
condition that petitioner deposits an amount of
Rs.25,00,000/- on or before 20.01.2022. Since the
aforesaid condition was not complied with, the order was
vacated on 09.02.2022. It is informed that though an
appeal was preferred by the petitioner against the order
imposing condition of deposit, the same was dismissed.
2. Till date, the amounts as directed by this Court has not
been deposited. No application for extension of time was
also filed. In the meantime, the respondent took
possession of the secured asset on 23.02.2022.
3. Since the learned counsel for the petitioner mentioned the
matter on 23.02.2022, the case was taken up in the
afternoon session on the same day at the request of the
counsel for the petitioner, even though, it was not listed
on that day. When the case was taken up, it was
WP(C) No.27754/2021 4/8
W.P.(C) No.27754 of 2021
informed by the learned counsel for the respondent that
possession had already been taken over and hence the case was
posted for hearing today i.e., 24.02.2022.
4. I heard Sri.Mathews J Nedumpara, the learned counsel for the
petitioner for sometime. He relied upon the Micro, Small and
Medium Enterprises Development Act, 2006 [for short, ' the
MSMED Act, 2006 '] and contended that petitioner is entitled to
the benefit of the notification dated 29.05.2015, a copy of
which is produced as Ext.P3; and hence the proceedings for
recovery cannot be initiated against the petitioner. Though
petitioner claimed the benefit of the provisions of the MSMED
Act, 2006 ; no document is seen produced in the writ petition
to prove the basis on which petitioner claimed to be an MSME.
In fact, the pleadings indicate that petitioner claims to be
"an agriculturist, a peasant farmer as well as the owner of a
Hindustan LPG Marketing business".
5. However during the course of hearing, petitioner submitted
that he has obtained a certificate of registration as an MSME
WP(C) No.27754/2021 5/8
W.P.(C) No.27754 of 2021
and a photocopy was handed over. Though the said document
has not been produced in the writ, still this Court considered
the same. A perusal of the certificate shows that the date of
registration is 20.12.2021. it is relevant to notice that the writ
petition was filed on 04.12.2021 and the certificate of
registration is obtained only after the filing of the writ
petition.
6. Sri.Paulochan Antony, the learned counsel for the respondent,
in this context, relied upon the decision in Silpi Industries etc.
(M/s.) and Another v. Kerala State Road Transport Corporation
and Another etc. [2021 (7) Scale 631] and referred to
paragraph No. 26, wherein it is stated that " in our view, to
seek the benefit of provisions under the Act, 2006, the seller
should have registered under the provisions of the Act, as on
the date of entering into the contract ". Relying upon the said
dictum of the Supreme Court, the learned counsel for the
respondent submitted that in the instant case petitioner cannot
claim any benefit under Ext.P3 notification, since the loan
WP(C) No.27754/2021 6/8
W.P.(C) No.27754 of 2021
agreement was entered into in the year 2016.
7. In view of the above, I am prima facie of the view that the
petitioner is not entitled to the benefit of the MSMED Act,
2006.
8. The learned counsel for the petitioner submitted that when the
appeal was dismissed, the Division Bench of this Court had
permitted the petitioner to move for appropriate modifications
before the learned single Judge considering the fact that
petitioner was not heard when the order was passed. Though
petitioner has raised a contention, as above, the judgment of
the Division Bench in writ appeal does not indicate any such
permission having been granted to the petitioner to move for
any modification. Further, petitioner has not moved any
application for such modification, extension or even a variation
of the interim order. In such circumstances, I am of the view
that the claim of the petitioner to be restored back to
possession, even if there is a failure to abide by the order of
conditional deposit, is not legally tenable.
WP(C) No.27754/2021 7/8
W.P.(C) No.27754 of 2021
9. Notwithstanding the above, since the petitioner has been
dispossessed from the property for a total loan liability of
Rs.1,05,00,000/-, though respondents are entitled to proceed
with the securitisation proceedings, if the petitioner deposit a
substantial portion of the liability, this Court shall consider the
restoration of possession of the secured asset to the petitioner
on conditions to be imposed, including proof of ability to repay
the balance amount due.
Post on 09.03.2022 for further consideration.
Sd/-
BECHU KURIAN THOMAS
JUDGE
AMV/24/02//2022
24-02-2022 /True Copy/ Assistant Registrar
WP(C) No.27754/2021 8/8
APPENDIX OF WP(C) 27754/2021
Exhibit P3 TRUE COPY OF THE NOTIFICATION S.O.1432 (E) DATED
29.5.2015 ISSUED BY MINISTRY OF MICRO SMALL AND MEDIUM
ENTERPRISES, GOVERNMENT OF INDIA.
