1. Hariharan. A N vs The Authorized Officer
2023 Latest Caselaw 743 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. 40146 OF 2022

PETITIONERS:

       1          1. HARIHARAN. A N
                  AGED 69 YEARS
                  PROPRIETOR OF M/S. COREX SERVICES,
                  13/8-2,8-3,8-5, KURAMPALA,
                  PANDALAM, PATHNAMTHITTA -689 501, PIN - 689501
       2          2. THILAKAM HARIHARAN
                  AGED 59 YEARS
                  ANANDHA BHAVAN,KUZHIYILATHU
                  KULANADA P.O,
                  PATHANAMTHITTA -689 503
                  , PIN - 689503
                  BY ADVS.
                  BINU BABUKUTTAN
                  VIDHU M.UNNITHAN
                  RATHEESH C.


RESPONDENTS:

       1          THE AUTHORIZED OFFICER
                  THE AUTHORIZED OFFICER, UNDER SARFAESI ACT 2002, SOUTH INDIAN BANK
                  LIMITEDSOUTH INDIAN BANK LIMITED,
                  SIB HOUSE, T.B. ROAD, MISSION QUATERS
                  TRISSUR- 680 001., PIN - 680001
       2          THE AUTHORIZED OFFICER
                  , UNDER SARFAESI ACT 2002, SOUTH INDIAN BANK LIMITED (REGIONAL
                  OFFICE),SOUTH INDIAN BANK LIMITED (REGIONAL OFFICE),
                  2ND FLOOR, TMJ COMPLEX, RAMCHIRA, MATTATHUR P.O
                  THIRUVALLA- 689 107., PIN - 689107
       3          3. THE MANAGER
                  SOUTH INDIAN BANK LIMITED,
                  DO.NO.396/ XVII, MC ROAD
                  PANDALAM P.O, PATHANAMTHITTA - 689 501
                  , PIN - 689501

OTHER PRESENT:

                  ADV. SUNIL SHANKAR (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. 40146 of 2022
                                        ..2..




                                   JUDGMENT

The petitioners availed two credit facilities from the

respondent bank. One of the facilities is a cash credit facility

and the other is an emergency credit granted on account of

the covid -19 pandemic. On default being committed the

bank has initiated proceedings under the provisions of the

SARFAESI Act and physical possession of the secured asset

is scheduled to be taken on 19.01.2023.

2. The learned counsel for the petitioners would submit

that if the petitioners are given some reasonable

instalments, the petitioners will be in a position to clear the

entire liability. He submits that the amount of

Rs.15,00,000/- directed to be paid towards the loan liability

as orally suggested by this court has already been paid on

11.01.2023. It is submitted that the date for taking physical

possession is on 19.01.2023 and the petitioners will

endeavor to pay another sum of Rs.5,00,000/- towards the W.P. (C) No. 40146 of 2022 ..3..

loan liability on or before 19.01.2023. The learned counsel

appearing for petitioners also submits that the petitioners

are not disputing the liability and only require reasonable

accommodation to clear the liability in instalments.

3. The learned counsel appearing for the respondent

bank submits that the respondent bank cannot agree for the

grant of any instalment facility. It is submitted that the after

giving credit to the amounts already paid by the petitioners,

the total outstanding amount in respect of both the loans

put together as on today (12.01.2023) is Rs.94,38,088/-. It

is submitted that the if the petitioners have any grievance

regarding the proceedings initiated by the bank, it is for the

petitioners to approach the Debts Recovery Tribunal.

4. The petitioners are not disputing the liability. The

petitioners only require some time to clear the entire

liability in instalments. The proceedings are only at the

stage of taking of physical possession. Absolutely no

prejudice will be caused if instalments are granted. Even if W.P. (C) No. 40146 of 2022 ..4..

the possession is taken now it seems highly unlikely that

recovery can be completed in the near future. Having

regard to the submissions made by the learned counsel

appearing for the petitioners and the learned counsel

appearing for the respondent bank and considering the law

laid down in Sundaram BNP Paribas Home Finance Ltd.

(M/S) v. Nisha [2016 (1) KHC 167] , I am of the view

that the petitioners can be granted an opportunity to repay

the outstanding amount in nine (9) instalments.

5. Accordingly, there will be a direction to the

respondent bank to accept repayment of the entire

outstanding amount of Rs.94,38,088/- along with bank

charges from the petitioners on the following conditions:

(i) Petitioners shall pay a sum of Rs.5,00,000/-

(Rupees five lakhs only) on or before 19.01.2023

and the balance outstanding amount together

with any accrued interest/costs shall be repaid in

nine (9) equated monthly installments;

W.P. (C) No. 40146 of 2022 ..5..

(ii) The first installment shall be paid on or before

17.02.2023 and subsequent installments shall

be paid on or before 17th day of every

succeeding month;

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

the respondent bank shall be entitled to proceed

in accordance with law;

(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 RMV W.P. (C) No. 40146 of 2022 ..6..

APPENDIX OF WP(C) 40146/2022

PETITIONER EXHIBITS Exhibit P1 NOTICE UNDER SECTION 13[2] ISSUED BY THE 2ND RESPONDENT MARKED AS EXHIBIT P1 Exhibit2 REPLY AND ACKNOWLEDGEMENT RECEIPT SENT BY THE PETITIONER FOR THE NOTICE UNDER SECTION 13[2] WAS ISSUED BY THE 2ND RESPONDENT MARKED AS EXHIBIT P2 Exhibit P3 NOTICE UNDER SECTION 13[8] WAS ISSUED BY THE 2ND RESPONDENT MARKED AS EXHIBIT P3 RESPONDENT EXHIBITS Exhibit R3(a) True copy of the Reply Letter dated 17.11.2022

RESPONDENTS' EXHIBITS:NIL

TRUE COPY

P.A.TO JUDGE