Thomas Mathew vs The Authorized Officer
2023 Latest Caselaw 298 Ker

                      IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                         PRESENT

                       THE HONOURABLE MR. JUSTICE GOPINATH P.

            WEDNESDAY, THE 11TH DAY OF JANUARY 2023 / 21ST POUSHA, 1944

                              WP(C) NO. 40013 OF 2022

         AGAINST THE ORDER/JUDGMENTMC 294/2022 OF CHIEF JUDICIAL MAGISTRATE

                                   PATHANAMTHITTA

PETITIONER:

               THOMAS MATHEW
               AGED 33 YEARS
               S/O A.P.THOMAS, PROPRIETOR, M/S. MGM HOLLOW
               BRICKS,AYROORTHARA HOUSE,ANICAD P.O.,MALLAPPALLY WEST,
               PATHANAMTHITTA, PIN - 689589
               BY ADV K.SUNILKUMAR


RESPONDENTS:

     1         THE AUTHORIZED OFFICER
               SOUTH INDIAN BANK LTD„
               REGD. OFFICE, SIB TOWER, T.B ROAD, MISSION QUARTERS,
               P,B NO.28, THRISSUR, KERALA, PIN - 680001
     2         THE BRANCH MANAGER
               SOUTH INDIAN BANK LTD
               MALLAPPALLY BRANCH
               PATHHANAMTHITTA, PIN - 689584
               BY ADV SRI.GEORGE VARGHESE,SC,SOUTH INDIAN BAN


OTHER PRESENT:

               ADV. SUNIL SHANKAR (SC)



      THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
11.01.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 W.P. (C) No. 40013 of 2022
                                     ..2..




                              JUDGMENT

The petitioner availed a cash credit facility from the

respondent bank and committed default in repayment.

Proceedings have been initiated against the petitioner under the

provisions of the SARFAESI Act to recover amounts due under

the credit facility extended to him. The learned counsel

appearing for the petitioner submits that the petitioner may be

permitted to clear the liability in instalments.

2. The learned counsel appearing for the respondent bank

submits that the bank cannot agree for the repayment of the

liability in instalments. It is submitted that the Writ Petition is not

maintainable and if the petitioner has any grievance regarding

the proceedings initiated under the provisions of the SARFAESI

Act, it is for the petitioner to approach the Debts Recovery

Tribunal by filing a Securitization Application under Section 17 of

the SARFAESI Act. It is stated that the petitioner has complied

with the interim order and deposited an amount of Rs.2,00,000/-

on 09.01.2023. It is submitted that the outstanding amount, W.P. (C) No. 40013 of 2022 ..3..

after giving credit to the aforesaid amount of Rs.2,00,000/- is

Rs.11,49,146/- as on today (11.01.2023).

3. After considering the judgment of the Supreme Court in

United Bank of India v. Satyawati Tondon and others

[2010 (8) SCC 110] and a Division Bench of this court

in Sundaram BNP Paribas Home Finance Ltd. v. Nisha

[2016 (1) KHC 167], held as follows:-

"5. It is clear from the judgment of the learned Single Judge as noted above that the learned Single Judge has considered the sole prayer of the petitioner to permit her to remit the balance amount outstanding to the bank in easy instalments. The petitioner thus accepted the liability as disclosed by the bank in the impugned notice. The only indulgence granted by the learned Single Judge was that the amount of Rs.10,55,662/- which was outstanding along with the accrued interest was permitted to be paid in ten equal and successive monthly instalments commencing from 30/11/2015. The said payment was in addition to the regular instalments. Under the second direction, it was directed that in the event the petitioner commits default in respect of any of the instalments, she will loose the benefit of the judgment of the learned Single Judge and W.P. (C) No. 40013 of 2022 ..4..

the bank was free to continue the recovery proceedings against her from the stage at which it stands at the relevant date. The judgment in Satyawati Tondon (supra), on which strong reliance has been placed by the learned counsel for the appellant was a case where, challenging the proceedings under the SARFAESI Act, a writ petition was filed and this Court had stayed the SARFAESI proceedings. The Apex Court noted the submissions of the parties and the order passed by the High Court by which the High Court had restrained the bank from taking proceedings under the SARFAESI Act with regard to the property of the petitioner. In paragraph 24, the Apex Court laid down the following:

"24. There is another reason why the impugned order should be set aside. If respondent No.1 had any tangible grievance against the notice issued under Section 13(4) or action taken under Section 14, then she could have availed remedy by filing an application under Section 17(1). The expression `any person' used in Section 17(1) is of wide import. It takes within its fold, not only the borrower but also guarantor or any other person who may be affected by the action taken under Section 13(4) or Section 14. Both, the Tribunal and the Appellate Tribunal are empowered to pass W.P. (C) No. 40013 of 2022 ..5..

interim orders under Sections 17 and 18 and are required to decide the matters within a fixed time schedule. It is thus evident that the remedies available to an aggrieved person under the SARFAESI Act are both expeditious and effective. Unfortunately, the High Court overlooked the settled law that the High Court will ordinarily not entertain a petition under Article 226 of the Constitution if an effective remedy is available to the aggrieved person and that this rule applies with greater rigour in matters involving recovery of taxes, cess, fees, other types of public money and the dues of banks and other financial institutions. In our view, while dealing with the petitions involving challenge to the action taken for recovery of the public dues, etc., the High Court must keep in mind that the legislations enacted by Parliament and State Legislatures for recovery of such dues are code unto themselves inasmuch as they not only contain comprehensive procedure for recovery of the dues but also envisage constitution of quasi judicial bodies for redressal of the grievance of any aggrieved person. Therefore, in all such cases, High Court must insist that before availing remedy under Article 226 of the Constitution, a person must exhaust the remedies available under the relevant statute."

W.P. (C) No. 40013 of 2022 ..6..

6. There cannot be any dispute to the proposition laid down by the Apex Court that the High Court, in exercise of jurisdiction under Article 226 of the Constitution of India should not stay the proceedings under the SARFAESI Act and ordinarily the petitioner should be asked to avail statutory remedy provided under Section 17 of the SARFAESI Act. In Satyawati Tondon (supra), the High Court entertained the writ petition and stayed the further proceedings under Section 13(4) of the SARFAESI Act. Present is the case where, although possession notice was sought to be quashed in the prayer made, at the time of hearing, the only prayer pressed was that the petitioner may be permitted to clear the outstanding amount due to the bank in easy instalments. The only indulgence asked for was to grant her some time to clear the outstanding amount along with interest accrued together with regular instalments. The learned Single Judge exercised his discretion in granting ten instalments to pay the entire outstanding amount along with interest accrued with regular instalments. The learned Single Judge did not stay the proceedings and, by the 2nd direction, gave liberty to the bank to proceed further from the stage at which it stands at the relevant date, in the event of any single default committed by W.P. (C) No. 40013 of 2022 ..7..

the petitioner. We are of the view that the interest of the bank was protected by the judgment passed by the learned Single Judge and it cannot be said to be an order by which the proceedings of the bank were either stayed or interfered with.

7. The next judgment relied upon by the learned counsel for the appellant is Mardia Chemicals (supra). It was a case where the Apex Court had occasion to consider the provisions of the SARFAESI Act and the Apex Court held that the conditions laid down in Section 17(2) of the SARFAESI Act for making deposit for filing an application are unreasonable and arbitrary. It is contended by the learned counsel that in view of the condition of deposit having been held to be arbitrary and unreasonable, it is open for the petitioner to file an application under Section 17 for redressal of her grievance and this was not a case where the Court should have entertained a writ petition. There is no doubt regarding the proposition laid down by the Apex Court in Mardia Chemicals (supra). Petitioner, of course, had a statutory remedy under Section 17 to approach the Debt Recovery Tribunal to challenge the proceedings under the SARFAESI Act. But, as noted above, petitioner in the writ petition having accepted the entire liability and the learned W.P. (C) No. 40013 of 2022 ..8..

Single Judge exercised his discretion in granting a breathing time to the petitioner to clear the outstanding, we do not think that the learned Single Judge has committed any error in passing the judgment, as noted above.'' I am of the view that since the petitioner has complied with

the interim order and since the petitioner is only asking for some

accommodation and he is not disputing the liability and

notwithstanding the objection raised by the learned counsel

appearing for the respondent bank, this Writ Petition can be

disposed of permitting the petitioner to clear the balance

outstanding amount in ten (10) instalments.

6. Accordingly, there will be a direction to the respondent

bank to accept repayment of the entire outstanding amount of

Rs.11,49,146 /- along with bank charges from the petitioner on

the following conditions:

(i) The outstanding amount of Rs.11,49,146/-

together with any accrued interest/costs shall

be repaid in ten (10) equated monthly

instalments.

(ii) The first instalment shall be paid on or before W.P. (C) No. 40013 of 2022 ..9..

07.02.2023 and subsequent instalments shall

be paid on or before 7th day of every succeeding

month.

(iii) In the event of default of any one instalment,

the respondent bank shall be entitled to

proceed in accordance with law.

(iv) In order to enable the petitioner 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 RMV W.P. (C) No. 40013 of 2022 ..10..

APPENDIX OF WP(C) 40013/2022

PETITIONER EXHIBITS Exhibit P1 THE TRUE COPY OF THE POSSESSION NOTICE DATED 31/12/2021 ISSUED BY THE 1ST RESPONDENT TO THE PETITIONER U/S 13(4) UNDER SARFAESI ACT Exhibit P2 THE TRUE COPY OF THE NOTICE DATED 02.12.2022 ISSUED BY THE ADVOCATE COMMISSIONER Exhibit P3 THE TRUE COPY OF THE PAY IN SLIP DATED 12/01/2022 REMITTED BY THE PETITIONER BEFORE RESPONDENT BANK Exhibit P4 THE TRUE COPY OF THE PAY IN SLIP DATED 13/05/2022 REMITTED BY THE PETITIONER BEFORE RESPONDENT BANK Exhibit P5 THE TRUE COPY OF THE PAY IN SLIP AND CHEQUE DATED 24/11/2022 REMITTED BY THE PETITIONER BEFORE RESPONDENT BANK

RESPONDENTS' EXHIBITS:NIL

TRUE COPY

P.A.TO JUDGE