Ahmedkutty T.T. Represented By ... vs Indian Overseas Bank Represented ...
2022 Latest Caselaw 8993 Ker

                IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                 PRESENT
                  THE HONOURABLE MR.JUSTICE N.NAGARESH
         WEDNESDAY, THE 27TH DAY OF JULY 2022 / 5TH SRAVANA, 1944
                         WP(C) NO. 7537 OF 2022
PETITIONER

             AHMEDKUTTY T.T. REPRESENTED BY POWER OF ATTORNEY,
             MOIDEENKUTTY T.T.
             AGED 57 YEARS
             S/O MOHAMMED T.T., R/AT THOOMBATH THAZHAKKATT HOUSE,
             PARAPPUR VILLAGE & POST, MALAPPURAM DISTRICT-676503
             REPRESENTED BY HIS LAWFUL POWER OF ATTORNEY,
             MOIDEENKUTTY T.T. AGED 54 YEARS, S/O MOHAMMED T.T.,
             R/AT THOOMBATH THAZHAKKATT HOUSE,
             PARAPPUR VILLAGE & POST, MALAPPURAM DISTRICT,
             PIN - 676503
             BY ADVS.
             S.JIJI
             P.RAJESH (KOTTAKKAL)


RESPONDENTS:

     1       INDIAN OVERSEAS BANK REPRESENTED BY BRANCH MANAGER
             KOTTACKAL BRANCH, ASIAN TOWER, MAIN ROAD, KOTTACKAL,
             MALAPPURAM DISTRICT, PIN - 676503
     2       THE AUTHORISED OFFICER UNDER SARFAESI ACT
             KOTTACKAL BRANCH, ASIAN TOWER, MAIN ROAD, KOTTACKAL,
             MALAPPURAM DISTRICT, PIN - 676503
     3       THE ASSISTANT GENERAL MANAGER
             INDIAN OVERSEAS BANK, REGIONAL OFFICE, VETTUKATTIL
             BUILDING, M.G. ROAD, ERNAKULAM, PIN - 682016
             BY ADVS.
             SUNIL SHANKER
             VIDYA GANGADHARAN


     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
27.07.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C) NO. 7537 OF 2022
                                     2


                           JUDGMENT

Dated this the 27th day of July, 2022

The petitioner, who is Purchaser of an e-auction property

auctioned by the 1st respondent-Bank, has approached this

Court seeking to quash Ext.P6 and to direct the respondents

to grant three more months time to make the balance sale

consideration in the e-auction confirmed in his name.

2. The petitioner states that he is temporarily residing

in Saudi Arabia. He responded to Ext.P2 e-auction notice

dated 06.11.2021 published by the 1st respondent-Bank for

sale of a property. The reserve price was `54,93,000/-. The

petitioner quoted `25,000/- above the said amount.

Accordingly, the bid was confirmed in the name of the

petitioner. The petitioner states that according to the terms of

the agreement, the petitioner had to deposit 25% of the bid

amount first and the balance amount within 15 days. The

petitioner had deposited 10% EMD of `5,49,300/- on WP(C) NO. 7537 OF 2022

20.11.2021. The petitioner remitted `8,30,200/- on

29.11.2021 and sought time from the respondents to pay the

balance amount. The respondents granted time till

29.01.2022, which period was further extended to 22.02.2022.

3. The petitioner states that he was employed in Saudi

Arabia and the Covid-19 pandemic had an adverse effect on

the financial condition of the petitioner. It is for the said reason

that the petitioner could not remit the amount even within the

extended time granted by the Bank. The petitioner is willing to

pay the outstanding amount together within one week. Unless

the respondents are directed to accept the said amount and

convey the property in favour of the petitioner, the petitioner

will be put to untold hardship and loss.

4. Standing Counsel entered appearance on behalf of

the respondents and contested the writ petition. The Standing

Counsel pointed out that as per the terms of the agreement,

the entire amount had to be paid by the petitioner within 15

days. The petitioner remitted only `8,30,200/- initially. The WP(C) NO. 7537 OF 2022

balance amount was not paid inspite of repeated requests

made by the Bank authorities.

5. Taking into consideration the representations of the

petitioner, the petitioner was granted extention of time till

29.01.2022 initially, which was further extended to 22.02.2022.

The petitioner could not still clear the amount. In the

circumstances, in view of the Rules and Regulations of the

Bank, no further extention can be granted. The Standing

Counsel submitted that the Bank may be permitted to forfeit

the amount already deposited by the petitioner.

6. I have heard the learned counsel for the petitioner

and the learned Standing Counsel representing the

respondents.

7. The petitioner, who was employed in Saudi Arabia,

participated in the e-auction pursuant to Ext.P2 e-auction

notice published by the respondents. The petitioner was the

successful bidder. The petitioner had deposited 10% EMD of

`5,49,300/- on 20.11.2021. The petitioner remitted another WP(C) NO. 7537 OF 2022

`8,30,200/- on 29.11.2021. The balance amount could not be

deposited within the stipulated time.

8. The petitioner sought enlargement of time and

taking into consideration the fact situation, the Bank has

extended the time till 29.01.2022 initially and thereafter again

upto 22.02.2022. It appears that the petitioner could not raise

the entire amount by that date and sought for a short

extension of time from the respondents. The respondents

were not willing. It is under such circumstances that the

petitioner approached this Court filing this writ petition, on

07.03.2022.

9. Taking into consideration the fact that the petitioner

is a bonafide bidder, in whose favour the e-auction was

confirmed and taking into consideration the fact that the

petitioner has paid 10% EMD of `5,49,300/- and another

remittance of `8,30,200/- on 29.11.2021 and also taking into

consideration the fact that the petitioner was employed abroad

and the Covid-19 pandemic has adversely affected his WP(C) NO. 7537 OF 2022

financial condition, this Court is of the view that it will be highly

arbitrary and harsh to deny the auctioned property, when the

sale is confirmed in favour of the petitioner and when the

petitioner and is ready and willing to pay the entire outstanding

amount. It is to be noted that the original borrower, to whom

the property belongs, has filed Ext.P7 affidavit in this Court

pointing out that he will not be raising any objection to the sale

of property in favour of the petitioner.

In the circumstances, the writ petition is disposed of

permitting the petitioner to pay the balance amount due to the

Bank pursuant to Ext.P2, within a period of one week from

today. The petitioner shall also pay an additional amount of

`1,00,000/- towards cost to the Bank.

sd/-

N.NAGARESH JUDGE hmh WP(C) NO. 7537 OF 2022

APPENDIX OF WP(C) 7537/2022

PETITIONER EXHIBITS Exhibit P-1 TRUE COPY OF THE POWER OF ATTORNEY EXECUTED BY THE PETITIONER IN FAVOUR OF HIS BROTHER MOIDEENKUTTY DATED 10-01-

Exhibit P-2 TRUE COPY OF THE E-AUCTION NOTICE DATED 06-11-2021 ISSUED BY THE 2ND RESPONDENT Exhibit P-3 TRUE COPY OF THE LETTER DATED 24-11-

2021 ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER Exhibit P-4 TRUE COPY OF THE BANK CHALAN DATED 20-

11-2021 AND 29-11-2021 REMITTING THE ABOVE AMOUNTS Exhibit P-5 TRUE COPY OF THE SALE CONFIRMATION LETTER DATED 18-12-2021 ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER Exhibit P-6 TRUE COPY OF THE LETTER ISSUED BY THE 3RD RESPONDENT TO THE PETITIONER DATED 19-02-2022 EXHIBIT P7 TRUE COPY OF THE NO OBJECTION LETTER ISSUED BY THE ORIGINAL BORROWER CERTIFIED BY NOTARY DATED 15.09.2021 RESPONDENT'S EXHIBITS ANNEXURE B1 TRUE COPY OF SALE NOTICE DATED 06.11.2021 ALONG WITH TERMS AND CONDITIONS.