M/S. Kaikara Construction ... vs M/S. Punjab & Sind Bank
2023 Latest Caselaw 7227 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                PRESENT

                  THE HONOURABLE MR.JUSTICE C.S.DIAS

         TUESDAY, THE 27TH DAY OF JUNE 2023 / 6TH ASHADHA, 1945

                        WP(C) NO. 19935 OF 2023

PETITIONERS:
     1      M/S. KAIKARA CONSTRUCTION COMPANY,
            KAITHAVARAM BUNGLOW, THIRUMULLAVARAM P.O., KOLLAM-691 012,
            A REGISTERED PARTNERSHIP, REP.BY ITS MANAGING PARTNER,
            A.ABDUL SALAM, KAITHAVARAM BUNGALOW, THIRUMULLAVARAM P.O.,
            KOLLAM, PIN - 691012

     2      JUVAIRY SALAM,
            AGED 54 YEARS
            W/O A. ABDUL SALAM, KAITHAVARAM BUNGALOW, THIRUMULLAVARAM
            P.O., KOLLAM-691 012, PARTNER ,M/S. KAIKARA CONSTRUCTION
            COMPANY

     3      AMINA AADHIL,
            AGED 37 YEARS
            D/O A. ABDUL SALAM, T.C NO.17/20135, KAIKARA BUNGALOW,
            S.320, SREEPURAM ROAD, POOJAPURA P.O., THIRUVANANTHAPURAM -
            695 012, PARTNER , M/S. KAIKARA CONSTRUCTION COMPANY

           BY ADVS.    K.BABU THOMAS
                       MARYKUTTY BABU


RESPONDENTS:

1 M/S. PUNJAB & SIND BANK, HEAD OFFICE, FIRST FLOOR, 21, RAJENDRA PLACE, NEW DELHI - 110 008, REPRESENTED BY ITS CHAIRMAN AND MANAGING DIRECTOR

2 THE CHIEF MANAGER, M/S. PUNJAB & SIND BANKTHIRUVANANTHAPURAM BRANCH , BR CODE: T0366, GROUND FLOOR, TC NO.25/2890, HAJI BHAVA COMMERCIAL COMPLEX , AMBUJA VILASOM ROAD, THIRUVANANTHAPURAM, PIN -

           695001

     3     THE AUTHORIZED OFFICER,

M/S. PUNJAB & SIND BANK , THIRUVANANTHAPURAM BRANCH , BR CODE: T0366, GROUND FLOOR, TC NO.25/2890, HAJI BHAVA COMMERCIAL COMPLEX , AMBUJA VILASOM ROAD, THIRUVANANTHAPURAM, PIN - 695001

BY ADVS. SAJI MATHEW SAJI MATHEW DEEPU ANIL(K/294/2019) THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 27.06.2023, ALONG WITH WP(C).18507/2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

W.P.(C)Nos.19935/2023 & 18507/2021

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE C.S.DIAS TUESDAY, THE 27TH DAY OF JUNE 2023 / 6TH ASHADHA, 1945 WP(C) NO. 18507 OF 2021

PETITIONER/:

1 KAIKARA CONSTRUCTION COMPANY KAITHAVARAM BUNGLOW, THIRUMULLAVARAM P.O, KOLLAM - 691012, A REGISTERED PARTNERSHIP, REPRESENTED BY ITS MANAGING PARTNER, A ABSUL SALAM, KAITHAVARAM BUNGALOW, THIRUMULLAVARAM P .O, KOLLAM - 691012.

2 JUVAIRY SALAM W/O. A. ABDUL SALAM, KAITHAVARAM BUNGLOW, THIRUMULLAVARAM P.O, KOLLAM - 691012, PARTNER, M/S. KAIKARA CONSTRUCTION COMPANY.

3 AMINA AADHIL D/O. A. ABDUL SALAM, T.C. NO.17/20135, KAIKARA BUNGALOW, 2. 320, SREEPURAM ROAD, POOJAPURA P.O, THIRUVANANTHAPURAM - 695012.

             BY ADVS.      K.BABU THOMAS
                           MARYKUTTY BABU

RESPONDENTS:
      1      PUNJAB & SIND BANK

HEAD OFFICE, FIRST FLOOR, 21, RAJENDRA PLACE, NEW DELHI - 110008, REPRESENTED BY ITS CHAIRMAN AND MANAGING DIRECTOR.

2 THE CHIEF MANAGER M/S. PUNJAB & SIND BANK, THIRUVANANTHAPURAM BRANCH, BR.CODE - TO366, GROUND FLOOR, TC NO.25/2890, HAJI BHAVAN COMMERCIAL COMPLEX, AMBUJA VILASOM ROAD, THIRUVANANTHAPURAM - 695001.

3 THE AUTHORIZED OFFICER M/S. PUNJAB & SIND BANK, THIRUVANANTHAPURAM BRANCH, BR.CODE - TO366, GROUND FLOOR, TC NO.25/2890, HAJI BHAVAN COMMERCIAL COMPLEX, AMBUJA VILASOM ROAD, THIRUVANANTHAPURAM - 695001.

4 THE UNION OF INDIA REPRESENTED BY THE SECRETARY TO THE GOVERNMENT, MINISTRY OF ROAD TRANSPORT AND HIGHWAYS, TRANSPORT BHAVAN, PARLIAMENT STREET, NEW DELHI - 110001.

5 THE DIRECTOR GENERAL MINISTRY OF ROAD TRANSPORT AND HIGHWAYS, TRANSPORT BHAVAN, PARLIAMENT STREET, NEW DELHI - 110001.

6 THE REGIONAL OFFICER MINISTRY OF ROAD TRANSPORT AND HIGHWAYS, PUBLIC OFFICE BUILDINGS, THIRUVANANTHAPURAM -695033,.

7 THE SUPERINTENDING ENGINEER.

NATIONAL HIGHWAY (CENTRAL CIRCLE), VYTTILA, KOCHI - 682019.

              BY ADVS.       SAJI MATHEW
                             J.RAMKUMAR
                             DENU JOSEPH
                             BIBIN BABU

THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 27.06.2023, ALONG WITH WP(C).19935/2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

W.P.(C)Nos.19935/2023 & 18507/2021

Dated this the 27th day of June,2023

COMMON JUDGMENT

The writ petitions are filed to direct the

respondents to permit the petitioners in the two writ

petitions to pay off the outstanding amount in equated

monthly instalments and regularise the loan accounts.

2. The petitioners' case is that they had availed

financial assistance from the first respondent - Bank -

by creating an equitable mortgage by deposit of title

deeds. Due to unforeseen circumstances and Covid19

pandemic, they could not pay the instalments on time.

The respondents have now proceeded against the

secured asset of the petitioners under the

Securitisation and Reconstruction of Financial Assets

and Enforcement of Security Interest Act, 2002 (in

short 'Act'). The petitioners are prepared to pay off the

outstanding amount in instalments. Hence, the writ

petitions.

W.P.(C)Nos.19935/2023 & 18507/2021

3. Heard; Sri.K.Babu Thomas, the learned

counsel appearing for the petitioners and Sri.Saji

Mathew, the learned counsel appearing for the

respondents.

4. Sri.Saji Mathew, on instructions, submitted

that the petitioners had availed three loan accounts.

As on 14.06.2023,

(i) overdraft facility - the outstanding amount is Rs.2,12,58,158/-

(ii)term loan - the outstanding amount is Rs.8,75,621.38 &

(iii)Guarantee Emergency Credit Line loan -

Rs.23,45,230.43

The respondents are willing to permit the petitioners to

pay the outstanding amounts as stated above in the

three loan accounts in six equated monthly

instalments. The said submission is recorded.

5. The learned counsel appearing for the

petitioners submitted that the petitioners may be W.P.(C)Nos.19935/2023 & 18507/2021

granted at least 12 instalments to pay the outstanding

amount.

6. Having considered the pleadings and

materials on record, the submissions made by the

learned counsel appearing for the parties, the

consensus arrived at between the parties and to

provide the petitioners one last opportunity to clear off

the liability, I am inclined to exercise the powers of

this Court under Article 226 of the Constitution of

India and entertain the writ petition.

Resultantly, I dispose of the writ petition in the

following manner:

(i) The respondents are directed to defer further coercive proceedings pursuant to Exts P4, P7 & P10 notices to enable the petitioners to pay the liability in equated monthly instalments as stated below.

(ii) The petitioners permitted to pay the outstanding amount as stated above with W.P.(C)Nos.19935/2023 & 18507/2021

future interest and cost to the first respondent

- Bank - in 10 equated monthly instalments commencing from 27.07.2023, along with regular EMIs.

(iii) Needless to mention, if the petitioners commit default in any of the conditions ordered above, the petitioners would lose the benefit of this judgment and the respondents would be at liberty to proceed with recovery proceedings from the stage it presently stands.

(iv) It is made clear that, no further application for modification/extension of time shall be entertained.

Sd/-

                                                 C.S.DIAS,JUDGE

DST/27.06.23                                                       //True copy//

                                                                   P.A.To Judge

W.P.(C)Nos.19935/2023 & 18507/2021

APPENDIX OF WP(C) 19935/2023

PETITIONER EXHIBITS EXHIBIT P1 TRUE COPY OF LETTER OF THE 2ND RESPONDENT INTIMATING SANCTION OF MSE LOAN DATED 28-9-

EXHIBIT P2 TRUE COPY OF E-MAIL OF THE 2ND RESPONDENT DATED 14-6-2021

EXHIBIT P3 TRUE COPY OF REPLY TO EXHIBIT P2 DATED 28-

6-2021

EXHIBIT P4 TRUE COPY OF NOTICE UNDER SECTION 13(2) OF THE SARFAESI ACT DATED 8-7-2021

EXHIBIT P5 TRUE COPY OF REPLY TO THE 2ND RESPONDENT DATED 31-8-2021

EXHIBIT P6 TRUE COPY OF LETTER OF THE 2ND RESPONDENT DATED 4-4-2022

EXHIBIT P7 TRUE COPY OF NOTICE ISSUED BY THE 3RD RESPONDENT DEMANDING PAYMENT DATED 23-3-

EXHIBIT P8 TRUE COPY OF ABSTRACT OF REPAYMENT OF LOAN AND INTEREST DATED 8-6-2023

EXHIBIT P9 TRUE COPY OF REPRESENTATION OF THE PETITIONER DATED 20-5-2023

EXHIBIT P10 TRUE COPY OF POSSESSION NOTICE ISSUED BY THE 3RD RESPONDENT DATED 30-5-2023

EXHIBIT P11 TRUE COPY OF REPRESENTATION OF THE PETITIONERS DATED 10-6-2023 RESPONDENT'S EXHIBITS: NIL W.P.(C)Nos.19935/2023 & 18507/2021

APPENDIX OF WP(C) 18507/2021

PETITIONER EXHIBITS EXHIBIT P1 TRUE COPY OF LETTER NO. MDP91/15-16 DATED 28.09.2015 TO THE FIRST PETITIONER.

EXHIBIT P2 THE TRUE COPY OF A MAIL SENT BY THE 2ND RESPONDENT TO THE PETITIONERS.

EXHIBIT P3 TRUE COPY OF REPLY TO THE 2ND RESPONDENT.

EXHIBIT P4 TRUE COPY OF NOTICE UNDER SECTION 13 (2) OF THE SARFAESI ACT, ISSUED BY THE 3RD RESPONDENT.

EXHIBIT P5 TRUE COPY OF REPRESENTATION SENT BY THE PETITIONER TO THE 2ND RESPONDENT.

EXHIBIT P6                  TRUE COPY OF REPLY BY THE 2ND RESPONDENT TO
                            EXHIBIT    P5   TOTAL    AMOUNT   OF    4S.
                            2,91,97,683/-

EXHIBIT P7                  TRUE COPY OF THE ORDER PASSED IN E.P NO. 51

OF 202O AND EXECUTION PETITION.

EXHIBIT P8 TRUE COPY OF THE REPRESENTATION OF THE FIRST PETITIONER TO RESPONDENTS 4 TO 7 FOR PAYMENT OF RS. 4,27,45,214/-

EXHIBIT P9 TRUE COPY LETTER OF THE 4TH RESPONDENT ALLOTING RS.3,7868,274/- TOWARDS A PORTION OF THE AWARDED AMOUNT DUE AND PAYABLE

EXHIBIT P10 TRUE COPY OF THE LETTER ENCLOSING DEMAND DRAFTS FOR RS,3,56,41,615/-

EXHIBIT P11 TRUE COPY OF POSSESSION NOTICE UNDER SECTION 13(4) OF SARFAESI ACT,2002, CLAMING RS3,08,789.85

RESPONDENT'S EXHIBITS: NIL