M/S. Allied Cashews vs The Authorized Officer Under ...
2023 Latest Caselaw 1016 Ker

                      IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                      PRESENT

                       THE HONOURABLE MR. JUSTICE GOPINATH P.

           TUESDAY, THE 17TH DAY OF JANUARY 2023 / 27TH POUSHA, 1944

                              WP(C) NO. 19750 OF 2022

PETITIONERS:

     1         M/S. ALLIED CASHEWS,
               REPRESENTED BY SHAJI C. LUKOSE, PROPRIETOR, AGED 56 YEARS, S/O.
               LUKOSE, RESIDING AT KUNNUVILA VEEDU, KARICKOM P.O., KOTTARAKKARA,
               KOLLAM-691531.
     2         RENNY PUNNOSE,
               AGED 53 YEARS
               W/O. LUKOSE, RESIDING AT KUNNUVILA VEEDU, KARICKOM P.O.,
               KOTTARAKKARA, KOLLAM-691531.
               BY ADVS.
               M.KIRANLAL
               R.RAJESH (VARKALA)
               MANU RAMACHANDRAN
               T.S.SARATH
               SAMEER M NAIR
               GEETHU KRISHNAN
               HARSHA SUSAN SAM


RESPONDENTS:

     1         THE AUTHORIZED OFFICER UNDER SECURITIZATION ACT.CSB BANK LTD.,
               SOUTH KERALA ZONE, THIRUVANANTHAPURAM-695034.
     2         THE CHIEF MANAGER,
               CSB BANK LIMITED, OFFICE AT KOTTARAKARA BRANCH, KOLLAM-691506.
               BY ADV MADHU RADHAKRISHNAN



      THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
17.01.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 W.P. (C) No.19750 of 2022
                                 ..2..




                            JUDGMENT

The 1st petitioner is the proprietor of an establishment

known as M/S Allied Cashews and the 2 nd petitioner is the

wife of the 1st petitioner. They had availed credit facilities

from the respondent bank and on default being committed,

proceedings have been initiated against the petitioners

under the provisions of the SARFAESI Act.

2. The petitioners submit that they are entitled to the

benefit of Ext.P2 order issued by the Government of Kerala

based on the decisions taken by the State Level Bankers

Committee to extend certain concessions etc in respect of

loans availed from commercial bankers like the respondent

bank. The petitioners, therefore, approached this court

seeking the following reliefs:

"(i) To issue a writ of mandamus, or any other

appropriate writ or direction or order

directing the respondents to allow the

petitioner to pay the entire default amount W.P. (C) No.19750 of 2022 ..3..

as per mandate of Ext.P2.

(ii) To issue a writ of mandamus or any other

appropriate writ or direction or order

directing the respondents to not actually

dispossess the petitioners.

(iii) Such other writ, orders or directions deem fit

on facts and n the interest of justice."

3. The learned counsel appearing for the

respondent bank would submit that the question as to

whether the petitioners are entitled to claim the benefit of

the scheme announced by the Government of Kerala has

been considered by this court in various cases including in

W.P.(C)Nos. 20049/2022 and 1615/2022 where this court

has taken the view that the decisions in the nature of

Ext.P2 cannot be binding on banks for the reason that

banking is a subject exclusively within the domain of the

Parliament by virtue of Entry 45 of List I of the 7th

schedule to the Constitution of India and on account of the W.P. (C) No.19750 of 2022 ..4..

fact that executive power is co-extensive with that of

legislative power by virtue of the provisions contained in

Article 162 of the Constitution of India.

4. The learned counsel appearing for the petitioners

would submit that while the issue as to whether the

petitioners are entitled to the benefits of Ext.P2 appeared

to be covered against the petitioners by virtue of the

judgments referred to as above, it will always open to the

petitioners to seek One Time Settlement or restructuring in

accordance with the policies of the respondent bank. It is

also submitted that the respondent bank had, in violation

of the interim order dated 17.06.2022 in the present Writ

Petition, proceeded to take physical possession of the

secured asset and in respect of which the petitioners have

already filed a contempt of court case.

5. The learned counsel appearing for the respondent

bank submits that the contention of the learned counsel

appearing for the petitioners that the interim order dated

17.06.2022 has been violated is not correct. I do not W.P. (C) No.19750 of 2022 ..5..

propose to examine the question as to whether there is a

violation of the order dated 17.06.2022 in this judgment as

the petitioner has already filed a contempt of court case In

the matter.

Having regard to the submissions made by the learned

counsel appearing for the petitioner and the learned

counsel appearing for the respondent, this Writ Petition is

dismissed as the reliefs sought for by the petitioner cannot

be granted for the reasons recorded by me on the

judgments in W.P.(C)Nos. 20049/2022 and 1615/2022.

However, I make it clear that this will not prevent the

petitioner from approaching the bank with any proposal for

One Time Settlement.

Sd/-

GOPINATH P.

JUDGE RMV W.P. (C) No.19750 of 2022 ..6..

APPENDIX OF WP(C) 19750/2022

PETITIONER EXHIBITS Exhibit P1 A TRUE COPY OF THE ORDER IN WPC 31581/2019 DATED 24/01/2020 BY THIS HON'BLE COURT.

Exhibit P2 A TRUE COPY OF THE GOVERNMENT ORDER (GEN.) BO.

224/2022/ID DATED 14/03/2022.

Exhibit P3 A TRUE COPY OF THE JUDGMENT IN WPC NO.8472/2022. Exhibit P4 A TRUE COPY OF THE PAYMENT RECEIPT DATED 12/04/2022 EVIDENCING THE PAYMENT MADE BY THE PETITION. Exhibit P5 A TRUE COPY OF THE ADVOCATES NOTICE DATED 03/06/2022 ISSUED BY THE BANK.

RESPONDENTS' EXHIBITS:NIL

TRUE COPY

P.A.TO JUDGE