Eby Eldhose vs State Bank Of India
2022 Latest Caselaw 7390 Ker

        IN THE HIGH COURT OF KERALA AT ERNAKULAM
                        PRESENT
          THE HONOURABLE MR.JUSTICE N.NAGARESH
  FRIDAY, THE 24TH DAY OF JUNE 2022 / 3RD ASHADHA, 1944
                WP(C) NO. 17006 OF 2022
PETITIONER:

         EBY ELDHOSE
         AGED 37 YEARS
         S/O ELDHOSE, VANDANATHU HOUSE,
         KOOVALOOR P.O., POTHANIKKAD,
         ERNAKULAM DISTRICT, PIN - 686671.

         BY ADV BIJIMON C.CHERIAN


RESPONDENTS:

    1    STATE BANK OF INDIA
         STRESSED ASSETS RECOVERY BRANCH, 7TH FLOOR,
         VANKAARATH TOWERS, EDAPPALLY-PALARIVATTOM,
         BYPASS JUNCTION, PALARIVATTOM,
         ERNAKULAM - 682024,
         REP. BY ITS AUTHORIZED OFFICER.

    2    STATE BANK OF INIDA
         POTHANIKAD BRANCH, REPRESENTED BY CHIEF
         MANAGER, (MAINTENANCE) RETAIL ASSETS SMALL &
         MEDIUM ENTERPRISES CENTER (RASMEC), PEARL
         TOWER, VELLOORKUNNAM, MARKET P. O.,
         MUVATTUPUZHA, ERNAKULAM DISTRICT, PIN - 686673.

         BY ADV M.JITHESH MENON

     THIS WRIT PETITION (CIVIL) HAVING COME UP         FOR
ADMISSION ON 24.06.2022, THE COURT ON THE SAME         DAY
DELIVERED THE FOLLOWING:
 W.P.(C) No.17006/2022
                                       :2:




                           N. NAGARESH, J.

          `````````````````````````````````````````````````````````````
                      W.P.(C) No.17006 of 2022

          `````````````````````````````````````````````````````````````
                Dated this the 24th day of June, 2022

                            JUDGMENT

~~~~~~~~~

The petitioner, who has availed a housing loan of

₹20 lakhs from the 2nd respondent-Bank, is before this Court

seeking to keep all further proceedings in Ext.P1 notice in

abeyance and to command the respondents to regularise the

loan account of the petitioner by remitting the overdue

amount by instalments, within a time limit that may be fixed

by this Court.

2. The petitioner states that he has availed a housing

loan of ₹20 lakhs from the 2nd respondent for constructing a

residential building, on 24.11.2015. The loan was to be paid

in 360 monthly instalments of ₹17,512/-. The petitioner has

been promptly paying the equated monthly instalments till W.P.(C) No.17006/2022

March, 2020. Due to Covid-19 pandemic and financial

constraints resulting therefrom, the petitioner was forced to

commit default in paying the monthly instalments. The

respondents thereupon initiated proceedings under the

Securitisation and Reconstruction of Financial Assets and

Enforcement of Security Interest Act, 2002 and issued

Ext.P1 notice dated 02.05.2019 under Section 13(2). The

petitioner was required to remit the outstanding of

₹22,21,492/-.

3. The petitioner thereupon approached the

respondents and expressed his willingness to regularise the

loan. However, the request of the petitioner remained

unheeded. Instead, the respondents approached the Chief

Judicial Magistrate's Court, Ernakulam filing MC No.45 of

2020 invoking Section 14 of the Act, 2002. The Chief

Judicial Magistrate issued Ext.P3 order in MC No.45 of 2020

appointing an Advocate Commissioner to take physical

possession of the property of the petitioner, given as

security.

W.P.(C) No.17006/2022

4. On 12.03.2020, the petitioner remitted ₹1,00,000/-

towards repayment. On 06.05.2022, the petitioner remitted a

further sum of ₹2,60,000/-. The petitioner states that he is

ready and willing to clear the arrears of the loan, provided he

is given sufficient time to repay the amount in instalments.

The impugned action of the respondents in taking

possession of the property of the petitioner under the

SARFAESI Act is illegal, fraudulent, invalid and void,

contends the petitioner.

5. Standing Counsel entered appearance on behalf

of the respondents and contested the writ petition filing

statement dated 15.06.2022. The respondents stated that in

spite of the repeated requests made by the respondents, the

petitioner did not clear the dues. The respondents had

entered into a compromise with the petitioner for settling the

account on payment of ₹25,00,000/- which had to be

remitted within a period of four months. The petitioner,

without adhering to the said compromise, has approached

this Court. The writ petition is therefore liable to be W.P.(C) No.17006/2022

dismissed, contended the Standing Counsel for the

respondents.

6. I have heard the learned counsel for the petitioner

and the learned Standing Counsel representing the

respondents.

7. The pleadings in the writ petition and arguments

raised at the Bar disclose that the petitioner availed loan of

₹20 lakhs in the month of November, 2015. The petitioner

has been remitting the Equated Monthly Instalments

regularly during the initial years. Due to Covid-19 pandemic

and consequential financial distress, the repayment fell into

arrears. The respondents initiated proceedings under the

SARFAESI Act and took over the possession of the building

given as security by the petitioner. As on 06.05.2022, the

total outstanding from the petitioner is about ₹26.51 lakhs.

8. Taking into consideration the fact that the loan

involved is a housing loan and the fact that the petitioner has

been remitting the EMI's regularly during the initial duration

of the loan, this Court is inclined to grant the petitioner W.P.(C) No.17006/2022

opportunity to repay the entire amount outstanding to the

respondent-Bank, in instalments.

9. The writ petition is therefore disposed of with the

following directions:

(i) The petitioner shall repay the entire outstanding amount due to the Bank along with accruing interest and other charges, if any, in 12 equal monthly instalments.

(ii) The first of such instalments shall be paid on or before 31.07.2022 and the remaining instalments in ensuing consecutive months.

(iii) If the petitioner commits any default in paying the instalments as directed above, the respondents will be free to proceed against the petitioner in accordance with law.

(iv) If the petitioner makes repayment as directed above, Ext.P1 and all other coercive proceedings against the petitioner and his sureties, shall stand deferred.

Sd/-

N. NAGARESH, JUDGE aks/27.06.2022 W.P.(C) No.17006/2022

APPENDIX OF WP(C) 17006/2022

PETITIONER'S EXHIBITS

Exhibit P1 TRUE COPY OF 13 (2) NOTICE ISSUED TO THE PETITIONER BY THE SECOND RESPONDENT.

Exhibit P2 TRUE COPY OF M.C 45/2020 FILED BEFORE THE CHIEF JUDICIAL MAGISTRATE COURT ERNAKULAM.

Exhibit P3 TRUE COPY OF ORDER IN M.C 45/2020 APPOINTING THE ADVOCATE COMMISSIONER.

Exhibit P4              TRUE COPY OF THE PAYMENT SLIP ISSUED
                        TO   THE   PETITIONER   BY   THE   FIRST
                        RESPONDENT    EVIDENCING   PAYMENT    OF

RS.1,00,000/- IN THE LOAN ACCOUNT.

Exhibit P5              TRUE COPY OF THE PAYMENT SLIP ISSUED
                        TO   THE   PETITIONER   BY   THE   FIRST
                        RESPONDENT    EVIDENCING   PAYMENT    OF

RS.2,60,000/- IN THE LOAN ACCOUNT.

Exhibit P6 TRUE COPY OF ORDER DATED 07-05-2022 PASSED IN C.M.P NO: 1437/2022 IN M.C 45/2020.

RESPONDENT'S EXTS:

R1(A) COPY OF REQUEST SUBMITTED BY THE PETITIONER'S FATHER.

R1(B) COPY OF OFFER FOR ONE TIME SETTLEMENT BY THE PETITIONER'S FATHER.

R1(C) COPY OF REQUEST/LETTER SUBMITTED BY THE PETITIONER DT 9.5.2022.

R1(D) COPY OF COMPROMISE SANCTIONED BY THE RESPONDENTS DT 12.5.2022.