Muhammed Nooh vs Hdb Financial Services Ltd
2022 Latest Caselaw 10393 Ker

              IN THE HIGH COURT OF KERALA AT ERNAKULAM
                               PRESENT
               THE HONOURABLE MR. JUSTICE GOPINATH P.
      FRIDAY, THE 7TH DAY OF OCTOBER 2022 / 15TH ASWINA, 1944
                      OP (DRT) NO. 392 OF 2022
         SA 103/2021 OF DEBT RECOVERY TRIBUNAL, ERNAKULAM
PETITIONER:

          MUHAMMED NOOH
          AGED 66 YEARS, S/O PAREED,
          PAROLIL HOUSE, RANDAR P.O, MUVATTUPUZHA,
          ERNAKULAM DISTRICT, PIN - 686 661.

          BY ADVS.
                     BABY THOMAS
                     DOMSON J.VATTAKUZHY
                     K.ANIL JOSEPH
                     GEORGE T.J
                     MARIAMMA JOSEPH
                     ALICIA JOSE


RESPONDENT:

          HDB FINANCIAL SERVICES LTD
          REG. OFFICE AT RADHIKA, 2ND FLOOR, LAW GARDEN ROAD,
          NAVRANGPURA, AHMEDABAD-380 009:
          REP. BY ARUN CHEMMENTHARA
          AUTHORIZED OFFICER AND LEGAL OFFICER KOZHIKODE ,
          HDB FINANCIAL SERVICES LTD, CHAITHANYA BUILDING,
          2ND FLOOR, OPP. SWAPNIL APARTMENTS, KK ROAD,
          KADAVANTHARA, ERNAKULAM, PIN - 682 017.

          BY ADV P.PAULOCHAN ANTONY


     THIS OP (DEBT RECOVERY TRIBUNAL) HAVING COME UP FOR ADMISSION
ON 07.10.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 O.P(DRT) NO.392 OF 2022          2




                          JUDGMENT

This original peition is filed challenging the proceedings

initiated against the petitioner under the provisions of the

Securitisation and Reconstruction of Financial Assets and

Enforcement of Security Interest Act (SARFAESI Act) to

recover amounts due under a loan availed by the petitioner

together with his son.

2. The learned counsel appearing for the petitioner

states that the petitioner will be in a position to clear the

entire liability by 31st of December 2022, as he expects to find

a buyer for the property which is subject matter of the

mortgage to the respondent financial institution. It is

submitted that no purpose will be served by dispossessing the

petitioner at present and it will be practically impossible for

the respondent financial institution to recover any amount

before 31.12.2022, even if the petitioner dispossessed from

the property. It is submitted that the proceedings under the

SARFAESI Act may be suspended till 31.12.2022, to enable

the petitioner to attempt settlement of the entire liability by

finding a buyer for the property in question. It is also

pointed out with reference to Ext.P5 that the petitioner is a

patient, who under went an Angioplasty procedure during the

month of August 2022 and this is also a factor that may be

taken into consideration while deciding the matter.

3. The learned counsel appearing for the respondent

financial institution points out that the petitioner had earlier

approached this Court in the year 2019 by filing

WP(C).No.33038/2019, which was later withdrawn to enable

the petitioner to seek reliefs from the Debt Recovery Tribunal.

It is submitted that though the petitioner filed a Securitisation

Application before the Debt Recovery Tribunal as

S.A.No.103/2021, the petitioner did not comply with any of

the condition imposed by the Tribunal while granting stay of

the proceedings. It is submitted that the petitioner has not

shown any bonafides and the present request to keep the

proceedings in abeyance till 31.12.2022 is nothing but an

attempt to delay the proceedings.

4. Having heard the learned counsel appearing for the

petitioner and the learned counsel appearing for the

respondent financial institution, I am the opinion that there is

considerable merit in the contention taken by the learned

counsel appearing for the respondent financial institution that

the petitioner has not shown any bonefides. It is to be noted

that after approaching this Court initially by filing a Writ

Petition, the petitioner withdrew that Writ Petition to enable

him to seek reliefs from the Debt Recovery Tribunal. It is not

disputed before me that the conditions imposed by the Debt

Recovery Tribunal by granting an order of stay have not been

complied with by the petitioner. There is no reason for me

to believe, presently, that the petitioner will pay off the entire

liability if he is granted time till 31-12-2022. On a pointed

question from this Court as to whether the petitioner is

willing to prove his bonafides by depositing some amount

immediately, it is the submission of the learned counsel for

the petitioner that the petitioner is not in a position to pay

any amount towards the loan liability at present. It is

submitted that the petitioner will be able to generate funds

and clear the liability only by sale of the mortgaged property

with the permission of the respondent financial institution.

5. Having regard to the aforesaid facts I am of the

opinion that the petitioner cannot be granted a blanket order

suspending the proceedings under the SARFAESI Act till

31.12.2022. However, considering the plea of the petitioner,

it is directed that if the petitioner makes a proposal for

repayment of liability by 31st of December 2022, to the

competent authority of the respondent financial institution

within a period of one week from today, further proceedings

under the SARFAESI Act shall be kept in abeyance till a

decision is taken on such proposal to be submitted by the

petitioner. It will always be open to the petitioner to apply for

a One Time Settlement also.

This writ petition is disposed of as above.

Sd/-

GOPINATH P.

JUDGE ats

APPENDIX OF OP (DRT) 392/2022

PETITIONER EXHIBITS Exhibit-P1 TRUE COPY OF THE COMMISSION APPLICATION DATED 31.03.2021 AS I.A NO. 649/2021

Exhibit-P2 TRUE COPY OF THE SAID AMENDMENT APPLICATION DATED 27.06.2022

Exhibit-P3 TRUE COPY OF THE STAY PETITION WITH IA NO.

1326/2022 ON 27.06.2022

Exhibit-P4 TRUE COPY OF THE CERTIFICATE ISSUED BY THE AGRICULTURAL OFFICER DATED 30.05.2022

Exhibit-P5 TRUE COPY OF THE DISCHARGE SUMMARY DATED 24.08.2022

Exhibit-P6 TRUE COPY OF THE AFFIDAVIT DATED 27.09.2022

Exhibit-P7 TRUE COPY OF THE ADVOCATE COMMISSIONER HAS ISSUED NOTICE DATED 20.06.2022