Sumeesh K.S vs The Branch Manager
2023 Latest Caselaw 672 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. 1032 OF 2023
PETITIONER:

          SUMEESH K.S.,
          AGED 46 YEARS
          SON OF SUBRAMANNIYAN, KALATHIL HOUSE, PAYBAZAR, ERIYAD,
          THRISSUR, PIN - 680 666.

          BY ADVS.
          I.DINESH MENON
          L.RAJESH NARAYAN



RESPONDENTS:

    1     THE BRANCH MANAGER,
          THE KERALA STATE CO-OPERATIVE BANK LTD, ERIYAND BRANCH,
          THRISSUR - 680 666.

    2     AUTHORIZED OFFICER,
          THE KERALA STATE CO-OPERATIVE BANK LTD, ERIYAD BRANCH,
          THRISSUR - 680 666.

          ADV. P C SASIDHARAN (SC)




     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. 1032 OF 2023

                                            2


                                     JUDGMENT

The petitioner faces proceedings under the SARFAESI Act to

recover amounts due under a mortgage loan availed by the

petitioner. The record of the case shows that the petitioner had

approached this Court by filing W.P.(C)No.11351 of 2022, which was

disposed of by judgment dated 31.03.2022 permitting the petitioner

to pay the then overdue amounts in instalments. It is not disputed

before me that the petitioner did not pay the amounts as directed

by this Court and filed I.A.No.2 of 2022 seeking extension of time to

comply with the directions. Ext.P8 is the order passed by this Court

on I.A.No.2 of 2022, where in paragraph 4, it is directed as follows:

"4. Having considered the aforesaid submissions, I grant one month's time to the petitioner to clear the entire liabilities due as on 29.12.2022 as per the judgment. Accordingly, if the petitioner clears the entire amounts due up till 29.12.2022, as stipulated in the judgment on or before 23.01.2022, petitioner shall be eligible to pay the remaining instalments specified in the judgment. It is clarified that if the petitioner commits default in paying the amount, within the said date, the benefit of this order shall not enure to him. Needless to mention, the regular EMIs shall also be continued to be paid. "

2. The learned counsel appearing for the petitioner would

submit that the petitioner has time till 23.01.2023 to pay the

amounts liable to be paid in terms of Ext.P4 judgment. It is

submitted that the petitioner has now filed Ext.P9 request for WP(C) NO. 1032 OF 2023

permitting the petitioner to settle the liability by engaging into a

private sale of a portion of the mortgaged assets. He submits that a

direction may be issued to the respondent Bank to consider Ext.P9

forthwith.

3. The learned counsel appearing for the respondent Bank

points out the facts and circumstances of the case and states that in

the light of the fact that the petitioner did not comply with the terms

of Ext.P4 judgment and has not paid a single penny towards the

loan liability after the date of that judgment, the petitioner is not

entitled to any indulgence whatsoever. It is submitted that the

present request made by the petitioner is only to protract the

proceedings.

Having heard the learned counsel for the petitioner and the

learned counsel appearing for the respondent Bank and having

regard to the fact that this Court has granted time upto 23.01.2023

to pay the amounts payable by the petitioner in terms of Ext.P4

judgment, I am of the view that a direction can be issued to the

respondent Bank to consider Ext.P9 and take a decision thereon

within a period of one week from today. Accordingly, this writ

petition will stand disposed of directing that a competent authority

of the respondent Bank to take a decision on Ext.P9 request made

by the petitioner and shall communicate the decision to the WP(C) NO. 1032 OF 2023

petitioner on or before 20.01.2023. It is made clear that whatever

be the decision taken by the Bank on Ext.P9, the same shall not

have the effect of postponing or extending the time specified in

Ext.P8 order of this Court.

The writ petition will stand disposed of as above.

Sd/-

GOPINATH P.

JUDGE DK WP(C) NO. 1032 OF 2023

APPENDIX OF WP(C) 1032/2023

PETITIONER EXHIBITS

Exhibit P1 TRUE COPY OF THE STATEMENT OF ACCOUNTS DATED 21.01.2022.

Exhibit P2 TRUE COPY OF THE NOTICE DATED 23.3.2021 ISSUED UNDER SECTION 13[4].

Exhibit P3 TRUE COPY OF THE NOTICE ISSUED UNDER RULE 4 DATED 07.3.2022.

Exhibit P4 TRUE COPY OF THE JUDGMENT DATED 31.3.2022 IN WP[C] NO.11351/2022.

Exhibit P5 TRUE COPY OF THE POSSESSION NOTICE DATED 19.01.2022.

Exhibit P6 TRUE COPY OF THE NOTICE DATED 28.4.2022 ISSUED BY THE RESPONDENTS.

Exhibit P7 TRUE COPY OF THE NOTICE DATED 8.12.2022 ISSUED BY ADVOCATE COMMISSIONER.

Exhibit P8 TRUE COPY OF THE ORDER IN EXTENSION PETITION IN I.A. NO.2 OF 2022 IN WP[C] NO.11351/2022 DATED 23.12.2022.

Exhibit P9 TRUE COPY OF THE REQUEST SUBMITTED BY THE PETITIONER DATED 09.01.2023.