Radhika P.K vs The Authorised Officer
2022 Latest Caselaw 8199 Ker

         IN THE HIGH COURT OF KERALA AT ERNAKULAM

                               PRESENT
                THE HONOURABLE MR.JUSTICE N.NAGARESH
  FRIDAY, THE 1ST DAY OF JULY 2022 / 10TH ASHADHA, 1944
                       WP(C) NO. 21492 OF 2022
PETITIONER/S:

    1          RADHIKA P.K,
               AGED 45 YEARS
               W/O HARIKUMAR C.K
               PADINJAREKKATTU HOUSE,
               KULAKKAD,THIRUVALLA P.O
               PATHANAMTHITTA PIN-689101,
    2          HARIKUMAR C.K,
               S/O KUNJUNJU, PADINJAREKKATTU HOUSE, KULAKKAD,
               THIRUVALLA P.O PATHANAMTHITTA PIN 689101,
               BY ADVS.
               MANSOOR.B.H.
               SAKEENA BEEGUM


RESPONDENT

               THE AUTHORISED OFFICER
               STATE BANK OF INDIA, SARC, LMS COMPOUND,
               OPPOSITE MUSEUM WEST GATE, VIKAS BHAVAN,
               THIRUVANANTHAPURAM-695 033.
               SRI.M.JITHESH MENON (SC) -R1
        THIS    WRIT   PETITION    (CIVIL)   HAVING   COME   UP    FOR
ADMISSION       ON   01.07.2022,   THE   COURT   ON   THE   SAME   DAY
DELIVERED THE FOLLOWING:
 W.P(C) No.21492 of 2022        :2:



                          JUDGMENT

Dated this the 1st day of July, 2022

The petitioners, who have availed a housing loan from

the State Bank of India, are before this Court seeking to

direct the respondent to permit the petitioners to clear the

overdue amounts in 12 equal monthly instalments and to

regularise the loan account and to keep in abeyance further

proceedings.

2. The petitioners state that they had availed a housing

loan for construction of a residential building. The loan

amount was ₹20 lakhs and the petitioners have repayment

period of 20 years. The petitioners have been remitting

Equated Monthly Instalments promptly. Due to Covid-19

pandemic and subsequent financial distress, certain EMIs

were defaulted. The respondent thereupon initiated coercive

proceedings against the petitioners under the SARFAESI Act

and now Ext.P1 notice has been issued by the Advocate

Commissioner in M.C.No.41/2022, which requires the

petitioners to vacate the mortgaged premises and handover

its vacant possession.

3. The petitioners stated that the petitioners' family

consists of aged parents and children and the family is in

thick financial difficulties. The loan repayment was defaulted

for reasons beyond the control of the petitioners. The

petitioners have already remitted substantial amounts

towards loan. In the circumstances, if the petitioners are

ousted from their residential premises, they will be put to

untold hardship and loss.

4. The Standing Counsel entered appearance on

behalf of the respondent and resisted the writ petition. It was

submitted on behalf of the respondent that the petitioners

have been making persistent default in making payment of

Equated Monthly Instalments. In spite of repeated requests

of the respondent, the petitioners did not care to clear the

overdue amount. In such circumstances, the Bank was

forced to take coercive proceedings under the SARFAESI

Act.

5. Now, as stated by the petitioners themselves,

O.A.No. 44 of 2022 is pending before the DRT-2,

Ernakulam. An amount of Rs.24,50,114/- is due from the

petitioners as on 01.07.2022. Since the Bank has recalled

the loan and the proceedings are pending before the DRT,

there is no question of regularising the loan of the petitioners.

However, if the petitioners remit the entire outstanding

arrears in a short period, coercive proceedings can be

deferred for the time being.

6. I have heard the learned counsel for the petitioners

and the learned Standing Counsel for the respondent-Bank.

7. It is discernible from the proceedings that the loan

amount is ₹20 lakhs. It is a housing loan. According to the

petitioners, they have availed loan in the year 2017 and they

have 20 years as repayment period. It is only due to financial

distress of the petitioners due to Covid-19 pandemic, which

was beyond their control, that the EMIs were defaulted.

However, this Court finds that the respondent-Bank had

recalled the loan and O.A.No.44 of 2022 is pending before

the DRT.

8. In such circumstances, there is no question of

regularising the loan account. However, taking into

consideration the peculiar facts and circumstances of the

case, this Court is of the view that the petitioners should be

granted a reasonable opportunity to pay off the entire

outstanding liabilities in instalments, before they are ousted

from their residential premises.

8. The writ petition is therefore disposed of with the

following directions:

1) The petitioners shall clear the entire outstanding

dues to the respondent-Bank along with accruing interest

and other charges, if any, in 10 equal monthly instalments.

2) The first of such instalment shall be paid on or

before 01.08.2022 and subsequent 9 instalments should be

made in consecutive months thereafter.

3) If the petitioners commit any default in remitting the

instalments as directed above, the respondent-Bank will be

at liberty to proceed against the petitioners, in accordance

with law.

4) If the petitioners remit the instalments as directed

above, Ext.P1 and all other coercive proceedings against the

petitioners and their sureties shall stand deferred.

Sd/-

N. NAGARESH, JUDGE smm/05.07.2022

APPENDIX OF WP(C) 21492/2022

PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE NOTICE ISSUED BY THE ADVOCATE COMMISSIONER IN MC 41/2022 OF CHIEF JUDICIAL MAGISTRATES COURT, PATHANAMTHITTA DATED 22.6.2022