Star Clays, No: Xvi/406 vs Indiabulls Housing Finance Ltd
2023 Latest Caselaw 12925 Ker

Kerala High Court

Star Clays, No: Xvi/406 vs Indiabulls Housing Finance Ltd on 8 December, 2023

Author: N.Nagaresh

Bench: N.Nagaresh

          IN THE HIGH COURT OF KERALA AT ERNAKULAM
                             PRESENT
               THE HONOURABLE MR.JUSTICE N.NAGARESH
FRIDAY, THE 8TH DAY OF DECEMBER 2023 / 17TH AGRAHAYANA, 1945
                     WP(C) NO. 40605 OF 2023
PETITIONERS:

    1     STAR CLAYS, NO: XVI/406
          VADAMA P.O., MALA, THRISSUR DISTRICT
          REPRESENTED BY ITS MANAGING PARTNER
          SRI. MANDAKAN JOHN JOSE, PIN - 680736.

    2     MANDAKAN JOHN JOSE,
          AGED 57 YEARS, S/O YOHANNAN,
          MANDAKATH HOUSE, VADAMA P.O., (VIA) MALA,
          THRISSUR DISTRICT, PIN - 680736.

          BY ADVS.
          GEORGE ABRAHAM
          JOBY D JOSEPH
          MARY CATHERINE PRIYANKA P.S.

RESPONDENTS:

    1     INDIABULLS HOUSING FINANCE LTD.,
          CORPORATE OFFICE AT INDIABULLS HOUSE 448-451,
          UDYOG VIHAR, PHACE V, GURUGRAM,
          HARYANA, PIN - 122016.

    2     AUTHORISED OFFICER,
          INDIABULLS HOUSING FINANCE LTD.,
          CORPORATE OFFICE AT INDIABULLS HOUSE 448-451,
          UDYOG VIHAR, PHACE V, GURUGRAM,HARYANA - 122016.

    3     BRANCH MANAGER,
          INDIABULLS HOUSING FINANCE LTD.,
          2ND FLOOR, RADHAAMANDIRAM, SY. NO.939/1,
          ALAPAT CROSS ROAD, ERNAKULAM,
          KOCHI, PIN - 682015.

          BY ADVS.
          MADHU RADHAKRISHNAN
          NELSON JOSEPH
          M.D.JOSEPH
          DEEPAK ASHOK KUMAR
 W.P.(C) No.40605 of 2023

                             :2:


     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON 08.12.2023, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
 W.P.(C) No.40605 of 2023

                                     :3:




                            JUDGMENT

Dated this the 8th day of December, 2023

The petitioners have approached this Court with the

following reliefs:-

"i) To issue a writ of certiorari or any other appropriate writ, direction or order to quash Exts.P5 and P8 orders issued by the 2nd respondent.

ii) To issue a writ of writ of mandamus or any other appropriate writ, order or direction, directing the respondents to grant One Time Settlement for the full and final settlement of the loan account without insisting the huge pre closure amounts as well as the exorbitant interest as claimed in Ext.P7.

iii) To regularise the loan account of the petitioners by permitting to deposit the overdue amount.

iv) To grant such other and further reliefs as this Hon'ble Court may consider just and proper in the facts and circumstances of the case.

v) The petitioners also pray that this Hon'ble Court may be pleased to dispense with the translation of the documents produced in the vernacular language."

2. Standing Counsel entered appearance on behalf of the

1st respondent and resisted the writ petition. The Standing

Counsel submitted that the 1st respondent is a Non Banking

Housing Finance Company and will not fall within the definition of

"State" under Article 12 of the Constitution of India. The issue

involved is falling within the realm of contract. The writ petition is

not maintainable.

3. Faced with the said contentions, the Counsel for the

petitioners submitted that the petitioners may be permitted to

move the competent Debt Recovery Tribunal and the petitioners

pray that in order to enable the petitioners to approach the Debt

Recovery Tribunal, coercive proceedings, if any, may be defered

for a period of three days.

Taking into consideration the entire facts and circumstances

of the case, the writ petition is disposed of without granting any

relief to the petitioners, but at the same time, permitting the

petitioners to approach the competent Debts Recovery Tribunal.

To enable the petitioners to approach the Debts Recovery

Tribunal with appropriate application, coercive proceedings, if

any, against the petitioners by the 1 st respondent shall be

deferred till 12.01.2024. All legal contentions raised in this writ

petition are left open.

Sd/-

N. NAGARESH JUDGE ams

APPENDIX OF WP(C) 40605/2023

PETITIONER EXHIBITS Exhibit P1 A COPY OF THE SB ACCOUNT DETAILS ISSUED BY THE CANARA BANK FROM 22/8/2011 TO 19/3/2023 Exhibit P2 A COPY OF THE ACCOUNT DETAILS FROM 31/8/2014 TO 3/2/2023 ISSUED BY THE 1ST RESPONDENT Exhibit P3 A COPY OF THE REPAYMENT SCHEDULE ISSUED BY THE 1ST RESPONDENT Exhibit P4 A COPY OF THE NOTICE DATED 9/8/2018 ISSUED BY THE 2ND RESPONDENT Exhibit P5 A COPY OF THE NOTICE DATED 20/8/2019 ISSUED UNDER SECTION 13(1) OF THE SARFAESI ACT Exhibit P6 A COPY OF THE POSSESSION NOTICE DATED 28/1/2023 ISSUED BY THE 2ND RESPONDENT Exhibit P7 A COPY OF THE INTIMATION DATED 15/2/2023 Exhibit P8 A COPY OF THE SALE NOTICE DATED 28/4/2023 ISSUED BY THE RESPONDENTS Exhibit P9 A COPY OF THE NOTICE DATED 25/11/2023 ISSUED BY THE ADVOCATE COMMISSIONER