Mariumma vs The South Indian Bank Ltd, ...
2023 Latest Caselaw 597 Ker

                IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                PRESENT
                 THE HONOURABLE MR. JUSTICE GOPINATH P.
    THURSDAY, THE 12TH DAY OF JANUARY 2023 / 22ND POUSHA, 1944
                        WP(C) NO. 42111 OF 2022
PETITIONER/S:

          MARIUMMA
          AGED 68 YEARS
          MARIUMMA MOOPANKANTAKATH, AGED 68 YEARS, DAUGHTER OF
          ABDUL KAREEM RESIDING AT RAIHANA MANZIL, KARAMEL,
          VELLUR P.O., PAYYANNUR, KANNUR DISTRICT. PIN - 670
          307., PIN - 670307
          BY ADV P.I.RAHEENA


RESPONDENT/S:

    1     THE SOUTH INDIAN BANK LTD, REPRESENTED BY ITS
          AUTHORISED OFFICER,
          THE SOUTH INDIAN BANK LTD, REPRESENTED BY ITS
          AUTHORISED OFFICER, REGIONAL OFFICE KANNUR, DOOR NO.
          4/110-K, KVR TOWER, PAMPAN MADHAVAN ROAD, TALAP,
          KANNUR, KANNUR DISTRICT PIN-670 002., PIN - 670002
    2     THE SOUTH INDIAN BANK LTD, PAYYANNUR BRANCH
          THE SOUTH INDIAN BANK LTD, PAYYANNUR BRANCH,
          REPRESENTED BY ITS BRANCH MANAGER, HARITHAM COMPLEX,
          MAIN ROAD, PAYYANNUR, KANNUR DISTRICT, PIN 670 307.,
          PIN - 670307
    3     ABBOOBACKER MOOPANTAKATH
          ABBOOBACKER MOOPANTAKATH, PROPRIETOR, CEEYEM MARKETING,
          DOOR NO.2/456 AND 457-1, KARAMEL, VELLUR P.O.
          PAYYANNUR, KANNUR DISTRICT 670 307., PIN - 670307
          BY ADVS.
          SRI.SUNIL SHANKAR, SC, INDIAN OVERSEAS BANK
          Sunil Shankar A
          VIDYA GANGADHARAN(K/000424/2020)
          SANDHRA.S(K/001610/2021)


     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
12.01.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C) NO. 42111 OF 2022                       2




                                 JUDGMENT

Petitioner has approached this Court, challenging

proceedings initiated by the respondent Bank under the

provisions of the Securitisation and Reconstruction of

Financial Assets and Enforcement of Security Interest Act,

for recovery of the amounts due from the petitioner.

2. Learned counsel appearing for the petitioner

submits that the petitioner availed an overdraft facility from

the respondent bank, but he could not repay that loan

because of the financial crisis in connection with Covid-19

pandemic. During course of hearing, petitioner has confined

the relief to an opportunity for repaying the liability in

instalments.

3. Learned counsel appearing for the respondent

bank submits that the petitioner availed an overdraft facility

from the respondent bank and committed default in

repayment. According to the learned counsel appearing for

the respondent, as on 01.01.2023, balance amount which is

liable to be repaid is Rs.31,43,046.30 (Rupees Thirty one

lakhs forty three thousand forty six and paise thirty only). It

is submitted that the loan accounts cannot be regularised

and the entire amount will have to be remitted.

4. Learned counsel appearing for the petitioner

submits that the petitioner does not dispute the liability and

he is only asking for some accommodation.

5. A Division Bench of this Court in Sundaram BNP

Paribas Home Finance Ltd V. Nisha [2016(1) KLT SN

'' 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 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 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."

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 2 nd 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 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 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.''

6. Having regard to the circumstances of the case

and considering the view taken by the Division Bench of this

Court in Sundaram BNP Paribas (supra), this writ petition

will stand disposed of , directing that the petitioner shall be

permitted to clear the entire outstanding amount in respect

of the credit facilities availed by the petitioner along with

accrued interest and bank charges in isx equal monthly

instalments:

7. Accordingly, there will be a direction to the

respondent bank to accept repayment of the entire

outstanding amount of Rs.31,43,046.30 (Rupees Thirty one

lakhs forty three thousand forty six and paise thirty only)

along with accrued interest and bank charges from the

petitioner in the following manner:

(i) The outstanding amount of Rs.31,43,046.30 (Rupees Thirty one lakhs forty three thousand forty six and paise thirty only) shall be repaid in six equated monthly instalments along with any accrued interest/costs;

(ii) The first instalment shall be paid on or before 06.02.2023 and the subsequent instalments shall be paid on or before the 06th day of the succeeding months;

(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 ajt

APPENDIX OF WP(C) 42111/2022

PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE NOTICE DATED 08/11/2022 BEARING REF. NO. RO-KNR/SAR-RN/79/2022-23 DATED 08/11/2022 ISSUED BY 1ST RESPONDENT Exhibit P2 TRUE COPY OF THE DEMAND NOTICE DATED 19/01/2022 ISSUED BY THE 1ST RESPONDENT. Exhibit P3 TRUE COPY OF THE POSSESSION NOTICE 19/04/2022 ISSUED BY 1ST RESPONDENT.

Exhibit P4 TRUE COPY OF THE STATEMENT OF ACCOUNT OF ACCOUNT NUMBER 040208100000098 ISSUED BY THE 2ND RESPONDENT