Anas P.J vs State Bank Of India, Rep. By Its ...
2023 Latest Caselaw 615 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. 953 OF 2023

PETITIONER:

               ANAS P.J
               AGED 52 YEARS
               ANAS P.J. AGED 52 YEARS,
               S/O. P.J.JAFFER,
               PUTHENVEEDU, CHANDHANAKAVU,
               ALAPPUZHA
               , PIN - 688011
               BY ADV E.V.MOLY


RESPONDENT:

               STATE BANK OF INDIA, REP. BY ITS AUTHORIZED OFFICER
               STRESSED ASSET RECOVERY BRANCH,
               7TH FLOOR, VANKARATH TOWERS,
               PALARIVATTOM BY-PASS JUNCTION,
               ERNAKULAM
               , PIN - 682024

OTHER PRESENT:

               ADV. S EASWARAN (SC)



      THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
12.01.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 W.P. (C) No. 953 of 2023
                                      ..2..




                              JUDGMENT

The petitioner is a guarantor and mortgagor in respect

of a loan availed by his brother, who was the petitioner in

W.P.(C) No. 30151/2022. W.P.(C) No. 30151 of 2022 was

disposed of on 30.09.2022 through Ext.P5 judgment as

under:-

"Petitioner availed a loan from the respondent bank and committed default in repayment of the amounts due to the respondent bank. The property of the petitioner, which was mortgaged with the respondent bank, was brought to sale and the property was sold on 27.9.2022.

2. On 22.9.2022, this Court passed the following interim order: "Adv.Jithesh Menon accepts notice for the respondent bank. Confirmation of any sale to be held on 27.9.2022 shall stand deferred by a period of two weeks on condition that the petitioner remits a sum of Rs.3,00,000/- (Rupees three lakhs only) towards the loan liability on or before 5 pm on 26.9.2022. Post on 30.9.2022 along with WP(C).30149/2022."

W.P. (C) No. 953 of 2023 ..3..

3. Today when the matter is taken up, it is not disputed before me that the condition imposed in the interim order dated 22.9.2022 has been complied with by the petitioner. It is stated that an amount of Rs.73,72,315/- is the balance outstanding as on 27.9.2022, after giving credit to the amount of Rs.3 lakhs paid by the petitioner pursuant to the interim order dated 22.9.2022.

4. The learned counsel for the petitioner states that the petitioner may be given a reasonable opportunity to clear off the liability in instalments.

5. The learned counsel appearing for the respondent bank states that since the petitioner has come at a stage when the sale was scheduled, it will be totally unfair if this Court grants instalments to the petitioner to clear the liability. It is submitted that though the petitioner has remitted a sum of Rs.3 lakhs pursuant to the interim order, the balance liability is huge and any interdiction in the sale at this stage will result in the auction purchaser walking out of the sale. It is submitted that taking into consideration the above aspects, if this Court is inclined to grant time to the petitioner, the petitioner will not be entitled to a long time to clear the liabilities. It is also submitted that the W.P. (C) No. 953 of 2023 ..4..

auction purchaser has deposited only 25% of the bid amount and under the provisions of Rule 9(4) of the Security Interest Rules, the balance has to be remitted shortly.

6. Having heard the learned counsel for the petitioner and the learned counsel appearing for the respondent bank, this writ petition is disposed of directing that if the petitioner remits the entire liability in full on or before 25.11.2022, the sale conducted on 27.9.2022 shall be cancelled. In order to minimise the loss of the auction purchaser, it is also directed that any amount paid by the auction purchaser shall be placed in a fixed deposit with the respondent bank. It is also directed that if any claim is made by the auction purchaser for compensation, the liability will be that of the petitioner."

2. Thereafter, the petitioner in W.P.(C) No. 30151/2022

filed an Interlocutory Application for extension of time,

which was rejected by Ext.P6 order dated 15.12.2022.

Presently, it is the case of the petitioner that the entire

amount required to be remitted in terms of Ext.P5

judgment on or before 25.11.2022 has been remitted by W.P. (C) No. 953 of 2023 ..5..

31.12.2022. It is submitted that the petitioner is,

therefore, entitled to the relief sought for in the present

Writ Petition.

3. The learned counsel appearing for the respondent

bank would submit that this court had shown sufficient

indulgence to the borrower (brother of the present

petitioner) by holding that if the entire liability was settled

by 25.11.2022, the sale conducted on 27.09.2022 shall be

cancelled. It is submitted that such an order was issued

even without hearing the auction purchaser, who had by

that time deposited 25% of the auction amount. It is

submitted that on the borrower/the petitioner failing to

comply with the terms of Ext.P5 judgment, the sale in

favor of the auction purchaser has been confirmed. It is

submitted that the bank has no objection in sharing the

details of the auction purchaser with the petitioner. The

learned counsel appearing for the respondent bank also

submits that the amounts stated to have been remitted to

the account by the petitioner by 31.12.2022 have been W.P. (C) No. 953 of 2023 ..6..

returned to the petitioner.

4. Having regard to the facts and circumstances of this

case, I am clearly of the view that having regard to the

terms of Ext.P5 judgment and Ext.P6 order, the filing of

this writ petition is an abuse of process of the court. The

writ petition fails. It is accordingly dismissed. However, the

respondent bank shall communicate to the petitioner forth

with the details of the auction purchaser.

Sd/-

GOPINATH P.

JUDGE RMV W.P. (C) No. 953 of 2023 ..7..

APPENDIX OF WP(C) 953/2023

PETITIONER EXHIBITS Exhibit P1 THE TRUE COPY OF THE LETTER DATED 24.3.2021 Exhibit P2 THE TRUE COPY OF THE DEMAND NOTICE DATED 30.7.2021 ISSUED BY THE RESPONDENT BANK Exhibit P3 THE TRUE COPY OF THE POSSESSION NOTICE DATED 10.3.2022 AFFIXED ON THE SECURED ASSET Exhibit P4 THE TRUE COPY OF THE SALE NOTICE PUBLISHED BY THE RESPONDENT BANK Exhibit5 THE TRUE COPY OF THE JUDGEMENT DATED 30-09-2022 IN WP (C) 30151/ 2022 Exhibit P6 THE TRUE COPY OF THE ORDER DATED 15-12-2022 IN IA NO 1/2022 IN WP (C) NO 30151/2022 Exhibit P7 THE TRUE COPY OF THE LETTER DATED 06-01-2023 RECEIVED FROM THE BANK Exhibit P8 THE TRUE COPY OF THE PRINTOUT OF THE SMS RECEIVED PETITIONER'S BROTHER

RESPONDENTS' EXHIBITS:NIL

TRUE COPY

P.A.TO JUDGE