Devasiachan.T.M vs State Bank Of India
2022 Latest Caselaw 6588 Ker

Citation : 2022 Latest Caselaw 6588 Ker
Judgement Date : 9 June, 2022

Kerala High Court

Devasiachan.T.M vs State Bank Of India on 9 June, 2022

        IN THE HIGH COURT OF KERALA AT ERNAKULAM

                            PRESENT
             THE HONOURABLE MR.JUSTICE N.NAGARESH
THURSDAY, THE 9TH DAY OF JUNE 2022 / 19TH JYAISHTA, 1944
                    WP(C) NO. 15016 OF 2022
PETITIONER

            DEVASIACHAN.T.M
            AGED 66 YEARS
            S/O. MATHAI, THATTAMPARAMBIL HOUSE, ARUVITHURA
            P.O., ERATTUPETTA, KOTTAYAM-686122.
            BY ADV SMT.MOLY.E.V., CGC


RESPONDENT

            STATE BANK OF INDIA
            STRESSED ASSETS RECOVERY BRANCH, PALARIVATTOM
            BRANCH, 7TH FLOOR, VANKARATH TOWERS, BYE-PASS
            JUNCTION, PALARIVATTOM, ERNAKULAM-682024, REP.
            BY ITS AUTHORIZED OFFICER.
     THIS    WRIT   PETITION    (CIVIL)   HAVING   COME    UP    FOR
ADMISSION    ON   09.06.2022,   THE   COURT   ON   THE    SAME   DAY
DELIVERED THE FOLLOWING:
 W.P.(C) No. 15016 of 2022       :2:



                            JUDGMENT

Dated this the 9th day of June, 2022

The petitioner is aggrieved by the coercive measures

initiated by the respondent-Bank to recover the amounts from

the petitioner. The petitioner seeks direction to the

respondent to regularise the loan account.

2. The petitioner states that he is the guarantor and

also the Power of Attorney holder of the borrower, who is his

daughter. His daughter availed a loan of Rs.12,05,700/-

from the respondent-Bank. The loan was availed in the year

2009. The loan repayment was promptly made during the

initial years. However, subsequently, due to the reasons

beyond the control of the petitioner or the petitioner's

daughter, the EMIs could not be paid. Now, the respondent

has initiated coercive proceedings invoking the provisions of

the SARFAESI Act. A possession notice has been issued as

per Ext.P2.

3. The petitioner states that the proposed SARFAESI

proceedings invoked against the mortgaged property of the

petitioner is unsustainable. The respondent ought to have

taken into consideration the repayment promptly made by the

petitioner's daughter upto the period of Covid-19 pandemic. If

the petitioner's daughter is given 20 months' time to pay the

outstanding amount in equal monthly instalments, the entire

dues can be cleared. In the facts of the case, the respondent

is compellable to desist from any proceedings initiated as per

Ext.P3.

4. The Standing Counsel appeared on behalf of the

respondent and contested the writ petition.

5. The Standing Counsel controverted all material

allegations made by the petitioner in the writ petition. It was

submitted that Rs.34,80,373.33 was the total outstanding

from the borrower as on 31.03.2022. The petitioner's

daughter committed consistent defaults and the respondent

had no other go than to initiate proceedings under the

SARFAESI Act. It was in such circumstances that Ext.P2

possession notice was issued. The petitioner can very well

challenge Ext.P2 notice before the DRT. If the borrower can

repay the amount within a limited period in instalments, the

petitioner's request can be considered.

6. I have heard the learned counsel for the petitioner

and the learned Standing Counsel representing the

respondent.

7. The fact that the petitioner's daughter had taken a

loan of Rs.12,05,700/- in the year 2009 is not in dispute. The

petitioner's daughter had paid the instalments at the initial

stage. Subsequently, due to Covid-19, the petitioner's

daughter could not remit the instalments. Now, the

respondent has initiated coercive proceedings as per Ext.P1.

8. The petitioner would submit that if sufficient time is

given, the entire outstanding amount can be cleared. In the

facts and circumstances of the case, this Court is of the view

that a breathing time should be granted to the petitioner and

his daughter to clear the dues.

9. In the circumstances of the case, the writ petition is

disposed of with the following directions:

(1) The petitioner shall remit the entire outstanding

amount along with accrued interest and other

charges, if any, in 12 equal monthly instalments.

The payment of the instalment should be

commenced by making remittance on 25.07.2022

and subsequent 11 instalments should be made in

consecutive months thereafter.

(2) If the petitioner commits any default in making

the remittances as directed above, the respondent

will be at liberty to proceed against the secured

properties, in accordance with law.

(3) If the petitioner is making the repayment as

directed above, the respondent shall defer

coercive proceedings proposed as per Ext.P3.

(4) In the meanwhile, If a One Time Settlement

Scheme of the Bank is available, the petitioner will

be at liberty to approach the Bank

Sd/-