Sreekanth K.C vs State Bank Of India
2023 Latest Caselaw 1130 Ker

             IN THE HIGH COURT OF KERALA AT ERNAKULAM
                              PRESENT
              THE HONOURABLE MR. JUSTICE GOPINATH P.
    WEDNESDAY, THE 18TH DAY OF JANUARY 2023 / 28TH POUSHA, 1944
                      WP(C) NO. 373 OF 2023
PETITIONERS:
     1     SRI.SREEKANTH K.C,
           AGED 40 YEARS,
           S/O.LATE KUTTAPPAN,
           CHANDRIKA BHAVAN, VETTINADU,
           VATTAPPARA P.O,THIRUVANANTHAPURAM - 695 028.

    2     SMT.AMBILI HARIDAS,
          AGED 38 YEARS,
          CHANDRIKA BHAVAN, VETTINADU,
          VATTAPPARA P.O, THIRUVANANTHAPURAM - 695 028.

    3     SMT.CHANDRIKA,
          AGED 64 YEARS,
          CHANDRIKA BHAVAN, VETTINADU,
          VATTAPPARA P.O,THIRUVANANTHAPURAM - 695 028.

          BY ADV R.B.RAJESH



RESPONDENTS:
     1     STATE BANK OF INDIA,
           RACPC, LMS COMPOUND,
           THIRUVANANTHAPURAM, REPRESENTED BY
           AUTHORIZED OFFICER/ CHIEF MANAGER,
           RACPC, LMS COMPOUND,
           VIKAS BHAVAN P.O, THIRUVANANTHAPURAM - 695 033.

    2     THE CHIEF MANAGER,
          STRESSED ASSETS RECOVERY BRANCH,
          STATE BANK OF INDIA, LMS COMPOUND,
          VIKAS BHAVAN P.O, THIRUVANANTHAPURAM - 695 033.

          BY ADVS.
          SRI.R.S.KALKURA, SC, SBI

          ADV. TOM K THOMAS (SC)


     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
18.01.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C) NO. 373 OF 2023

                                  2




                             JUDGMENT

The petitioners have approached this Court challenging

the proceedings initiated against the petitioners under the

provisions of the SARFAESI Act to recover amounts due

under a housing loan availed by the petitioners.

2. The record of the case shows that on an earlier

occasion when proceedings were initiated under the

provisions of the SARFAESI Act, the petitioners had

approached this Court and this Court by Ext.P1 judgment

had permitted the petitioners to clear the then overdue

amount in instalments, making it clear that no further

indulgence will be shown to the petitioners.

3. It was submitted on behalf of the respondent

bank that the petitioners committed default in repayment

and the outstanding amount as on 06.01.2023 is

Rs.25,21,461/- (Rupees twenty five lakhs twenty one

thousand four hundred and sixty one only). The learned

counsel for the respondent Bank would point out that the

petitioners failed to comply with the terms of Ext.P1 WP(C) NO. 373 OF 2023

judgment and therefore, the Bank was constrained to recall

the loan and file an Original Application before the Tribunal.

It is submitted that since the loan has been recalled and

since an Original Application has already been filed before

the Tribunal, the question of now regularizing the loan

account by accepting the present overdue amount does not

arise.

3. The learned counsel appearing for the petitioners

would submit that the secured asset in question is the

residential house of the 1st petitioner, where the 1st

petitioner along with his family consisting of his aged

mother, wife and two minor children are residing and the

petitioners will be put to serious prejudice if the physical

possession of the secured asset is taken by the Authorized

Officer of the respondent Bank. It is submitted that if

regularization is not possible, the petitioners may be

permitted to clear the entire outstanding amount in some

instalments.

4. Having heard the learned counsel for the

petitioners and the learned counsel appearing for the

respondent Bank and having regard to the terms of Ext.P1 WP(C) NO. 373 OF 2023

judgment, I am of the view that the petitioners are actually

not entitled to any further relief from this Court. However,

considering the submission made by the learned counsel for

the petitioners that the petitioners will clear the entire

outstanding amount in some instalments and also taking

note of his submission that the entire overdue amounts have

already been paid, the petitioners are permitted to clear the

entire outstanding amount of Rs.25,21,461/- (Rupees twenty

five lakhs twenty one thousand four hundred and sixty one

only) in 20 equal monthly instalments commencing from

10.02.2023.

5. Accordingly, there will be a direction to the

respondent bank to accept repayment of the entire

outstanding amount of Rs.25,21,461/- (Rupees twenty five

lakhs twenty one thousand four hundred and sixty one only)

along with any accrued interest, costs and charges from the

petitioners on the following conditions:

(i)The outstanding amount of Rs.25,21,461/- (Rupees twenty five lakhs twenty one thousand four hundred and sixty one only) along with any accrued interest, costs and charges shall be repaid in 20 equated monthly instalments.

(ii)The first instalment shall be paid on or before WP(C) NO. 373 OF 2023

10.02.2023 and the subsequent instalments shall be paid on or before the 10 th day of every succeeding month.

(iii)If the petitioners commit any default in payment of any instalment as above, it will be open to the respondent Bank to continue with the proceedings now initiated against the petitioners.

(iv) In order to enable the petitioners to repay the entire amounts, all coercive proceedings shall be kept in abeyance.

The writ petition is disposed of as above.

Sd/-

GOPINATH P.

JUDGE DK WP(C) NO. 373 OF 2023

APPENDIX OF WP(C) 373/2023

PETITIONER EXHIBITS

Exhibit P1 TRUE COPY OF THE JUDGMENT OF THIS HONORABLE COURT IN WP (C) NO. 35940 OF 2018 DATED 07.11.2018

Exhibit P2 TRUE COPY OF THE STATEMENT OF ACCOUNTS IN LOAN ACCOUNT NO.

36207766418 DATED 14/11/2022

Exhibit P3 TRUE COPY OF THE RECEIPT ISSUED BY THE RESPONDENTS DATED 30.12.2022

Exhibit P4 TRUE COPY OF THE NOTICE RULE 8 (6) OF THE SECURITY INTEREST (ENFORCEMENT) RULES, 2002 DATED 07/02/2022 ISSUED BY THE RESPONDENTS TO THE PETITIONER

Exhibit P5 TRUE COPY OF THE NOTICE NO.

SAR/TVM/PRA/1171#022-23 DATED 03/09/2022

Exhibit P6 TRUE COPY OF THE NOTICE DATED 22/12/2022 ISSUED BY THE ADVOCATE COMMISSIONER

Exhibit P7 TRUE COPY OF THE RELEVANT PAGES OF MASTER CIRCULAR NO. RBI/2021-

2022/104, DORNO.STR.REC.55 21.04.048/202 I -22 DATED 01/10/2021

Exhibit P8 TRUE COPY OF CIRCULAR NO. RBU2020-

2021A7, REF. NO DOS.CO.PPG./SEC.03/11.01.005/2020-21 DATED 14/09/2020

Exhibit P9 A TRUE COPY OF THE RECEIPT DATED 14.09.2022 IN ACCOUNT NO. 33933574299 ISSUED BY THE 2ND RESPONDENT WP(C) NO. 373 OF 2023

Exhibit P10 TRUE COPY OF THE RECEIPT DATED 14.09.2022 IN ACCOUNT NO. 33933574299 ISSUED BY THE 2ND RESPONDENT

Exhibit P11 TRUE COPY OF THE REMITTANCE SLIP WITH UTR NO. UBINH22257313853 DATED 14.09.2022