P.V.Chacko vs The South Indian Bank Ltd
2022 Latest Caselaw 7164 Ker

                IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                PRESENT
                 THE HONOURABLE MR. JUSTICE GOPINATH P.
        THURSDAY, THE 23RD DAY OF JUNE 2022 / 2ND ASHADHA, 1944
                         WP(C) NO. 2415 OF 2022
PETITIONER/S:



    1       P.V.CHACKO,
            AGED 81 YEARS
            S/O. VARKEY RESIDING AT PUTHANAPRA HOUSE, KARINKUZHI,
            VELLUR P.O., PAYANNUR, KANNUR 670 307.
    2       SANEESH JAMES,
            AGED 42 YEARS
            S/O.P.V. CHACKO, RESIDING AT PUTHANAPRA HOUSE,
            KARINKUZHI, VELLUR P.O., PAYANNUR, KANNUR 670 307.
    3       JISHA K GEORGE,
            AGED 36 YEARS
            W/O. SANEESH JAMES,
            RESIDING AT PUTHANAPRA HOUSE,
            KARINKUZHI, VELLUR P.O., PAYANNUR, KANNUR 670 307.
            BY ADV M.S.AMAL DHARSAN


RESPONDENT/S:

    1       THE SOUTH INDIAN BANK LTD.
            PAYYANUR BRANCH,
            HARITHAM COMPLEX,
            NR. MUKUNDA HOSPITAL, MAIN ROAD, PAYYANUR, KANNUR 670
            307.
            REPRESENTED BY BRANCH MANAGER.
    2       THE AUTHORISED OFFICER,
            THE SOUTH INDIAN BANK LTD,
            REGIONAL OFFICE KANNUR, KVR TOWER, PAMPAN MADHAVAN
            ROAD, KANNUR 670 002.
    3       THE REGIONAL MANAGER,
            THE SOUTH INDIAN BANK LTD, REGIONAL OFFICE, KANNUR, KVR
            TOWER, PAMPAN MADHAVAN ROAD, KANNUR 670 002.
            BY ADVS.
            SUNIL SHANKER
            KEVIN VARGHESE JACOB


     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
23.06.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C) NO. 2415 OF 2022                    2




                                 JUDGMENT

Petitioners have approached this Court, being aggrieved

by the proceedings against them under the provisions of the

SARFAESI Act.

2. The primary contention raised by the learned

counsel appearing for the petitioners is that the respondent

bank had refused to extent benefit of

restructuring/rescheduling which was available to the

petitioners in terms of Ext.P3 guidelines issued by the Reserve

Bank of India . It is submitted that the guidelines issued by the

Reserve Bank of India are binding on the respondent bank. It

is submitted that the failure of the respondent bank to consider

the restructuring/rescheduling of the loan is arbitrary on

account of the fact that till August 2021, the petitioners had

diligently serviced the loan without any default.

3. Learned Standing Counsel appearing for the bank

submits that all the benefits to which the petitioners were

entitled, including the Emergency Credit Line Guarantee

Scheme, introduced by the Government of India on account of

the economic recession owing to Covid-19 pandemic, have

been extended to the petitioners. It is submitted that the

question as to whether the account should be permitted to be

restructured/rescheduled is a commercial decision to be taken

by the respondent bank and considering the fact that the bank

was not satisfied with the proposal given by the petitioners, the

rescheduling/restructuring was not allowed. It is also

submitted that going by the law laid down in the judgment of

the Hon'ble Supreme Court in Small Scale Industrial

Manufactures Association V. Union of India [(2018) 8

SCC 511], in dealing with the action initiated by the banks and

reliefs to be extended on account of economic recession owing

to Covid-19 pandemic, it is observed as follows:-

''It is required to be noted that as such the bankers are commercial entities and since the customer profile, organisational structure and spread of each lending institution is widely different from others, each lending institution is best placed to assess the requirements of its customers and therefore, the discretion was left to the lending institutions concerned. Any borrowing arrangement is a commercial contract between the lender and borrower.

RBI and/or the Union of India can provide for broad guidelines while recommending to give the reliefs''

4. Learned counsel appearing for the petitioners

submits that despite the petitioners going through severe

financial crisis as well as other domestic problems which are

highlighted in the writ petition, the respondent bank did not

consider the request of the petitioners. It is submitted that the

bank simply refused to consider the request of the petitioners

and did not require the petitioners to submit any proposal or

documents for the consideration of the proposal.

5. Having regard to the facts and circumstances of the

case this writ petition will stand disposed of directing that if

the petitioners submit a comprehensive proposal for

rescheduling/restructuring before the 3 rd respondent,

competent authority of the respondent bank shall take a

decision on the same. The petitioners shall also make available

to the bank any documents that the bank may require to

consider the proposal to be submitted by the petitioners. The

proposal shall be submitted before the 3 rd respondent on or

before 30.06.2022. The petitioner shall, as a condition

precedent for considering the application, pay an amount of

Rs.5,00,000/- (Rupees five lakhs only) on or before 30.06.2022,

another Rs.5,00,000/- (Rupees five lakhs only) on or before

10.07.2022 and a further sum of Rs.10,00,000/- (Rupees ten

lakhs only) on or before 30.07.2022. It is made clear that if

the proposal is not supported by the payment as aforesaid, the

bank will be under no obligation to consider the

restructuring/rescheduling proposal. Further coercive steps

against the petitioners shall remain suspended till a decision is

taken by the bank on restructuring/rescheduling proposal as

above.

sd/-

GOPINATH P.

JUDGE ajt

APPENDIX OF WP(C) 2415/2022

PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE RELEVANT PAGES OF THE PASSBOOK OF THE PETITIONERS LOAN ACCOUNTS. Exhibit P2 TRUE COPY OF THE DISCHARGE SUMMARY OF THE ASTER MIMS HOSPITAL DATED 28/04/2020.

Exhibit P3 TRUE COPY OF THE RBI CIRCULAR DATED 05/05/2021.

Exhibit P4 TRUE COPY OF THE LETTER AND EMAIL DATED 30/07/2021.

Exhibit P5 TRUE COPY OF THE MEDICAL RECORDS OF THE IST PETITIONER.

Exhibit P6 TRUE COPY OF THE DEATH CERTIFICATE OF THE IST PETITIONER WIFE.

Exhibit P7 TRUE COPY OF THE NOTICE NO.

RO/KNR/SAR/402/526/2021-22 DATED 12/11/2021.

Exhibit P8 TRUE COPY OF THE NOTICE NO.

RO/KNR/SAR/402/524/2021-22 DATED 12/11/2021.

Exhibit P9 TRUE COPY OF THE NOTICE NO.

RO/KNR/SAR/520/2021-22 DATED 11/11/2021.

Exhibit P10 TRUE COPY OF THE NOTICE NO.

RO/KNR/SAR/402/525/2021-22 DATED 12/11/2021.

Exhibit P11 TRUE COPY OF THE NOTICE NO.

RO/KNR/SAR/402/527/2021-22 DATED 12/11/2021. Exhibit P12 TRUE COPY OF THE RELEVANT PAGES OF THE ACCOUNT STATEMENT OF THE IST RESPONDENT BANK ACCOUNTS.