Salim C. A vs Cholamandalam Investment And ...
2023 Latest Caselaw 7231 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. 15383 OF 2023
PETITIONER/S:

            SALIM C. A.
            AGED 49 YEARS
            S/O.MR.ALI C.M., CHULAKKAPARAMBIL HOUSE, KUZHIPPALLY,
            MAYA BAZAR, VACHAKKAL P. O., EDAVANAKKAD, PIN - 682502

            BY ADV MINI K.



RESPONDENT/S:

1 CHOLAMANDALAM INVESTMENT AND FINANCE CO. LTD GEOJIT BUILDING, PADIVATTOM P.O., PALARIVATTOM, KOCHI, REP BY BRANCH MANAGER, PIN - 682024

2 CHOLAMANDALAM INVESTMENT AND FINANCE CO. LTD DARE HOUSE, 2, N.S.E BOSE ROAD, PARRYS, CHENNAI, REP BY ITS CHAIRMAN, PIN - 600001

3 CHOLAMANDALAM INVESTMENT AND FINANCE CO. LTD DARE HOUSE, 2, N.S.E BOSE ROAD, PARRYS, CHENNAI, REPRESENTED BY ITS MANAGING DIRECTOR, PIN - 600001

BY ADVS.

P.V.SARITHA VENUGOPAL N.P.RUKSANA ROHINI P.K.

THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 27.06.2023,ALONG WITH WPC NO.15942/2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

WP(C) NO. 15383 & 15942 OF 2023

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. 15942 OF 2023 PETITIONER/S:

SALIM.C.A,AGED 49 YEARS, SALIM.C.A, S/O.ALI.C.M, CHULAKKAPARAMBIL HOUSE, KUZHIPPALLY, MAYA BAZAR, VACHAKKAL.P.O, EDAVANAKKAD, ERNAKULAM DISTRICT.-

682502

BY ADV P.USHAKUMARI

RESPONDENT/S:

1 THE BRANCH MANGER ,CHOLAMANDALAM INVESTMENT & FINANCE COMPANY LIMITE GEOJIT BUILDING, PADIVATTOM.P.O, PALARIVATTOM, ERNAKULAM, KOCHI

-682024

2 CHOLAMANDALAM INVESTMENT & FINANCE COMPANY LIMITED, DARE HOUSE, 2,N.S.E.BOSE ROAD, PARRYS, CHOLAMANDALAM INVESTMENT & FINANCE COMPANY LIMITED, DARE HOUSE, 2,N.S.E.BOSE ROAD, PARRYS, CHENNAI.600001, REPRESENTED BY ITS MANAGING DIRECTOR.

3 THE MANAGING DIRECTOR., CHOLAMANDALAM INVESTMENT & FINANCE COMPANY LIMITED, DARE HOUSE, 2,N.S.E.BOSE ROAD, PARRYS, CHENNAI.600001.

BY ADVS.

P.V.SARITHA VENUGOPAL N.P.RUKSANA V.JAICHANDRAN S.SUNIL KUMAR (PALAKKAD)

THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 27.06.2023,ALONG WITH WPC NO.15383/2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 15383 & 15942 OF 2023

COMMON JUDGMENT

These writ petitions are filed, inter-alia, to direct

the respondents to permit the petitioner to pay off the

overdue amount in installments and regularise the loan

account.

2. The petitioner's common case in the writ

petitions is that he had availed a housing loan from the

respondents by creating an equitable mortgage by

deposit of title deeds. Due to reasons beyond his

control, he could not pay the installments in time. The

respondents have proceeded against the secured asset

under the Securitization and Reconstruction of

Financial Assets and Enforcement of Security Interest

Act, 2002 (in short, 'Act'). The petitioner is prepared to

pay off the overdue amount in installments. By Ext.P3

judgment, this Court had permitted the petitioner to

submit a proposal before the respondents to avail the

One Time Settlement Scheme. But, the petitioner was WP(C) NO. 15383 & 15942 OF 2023

unable to pay the agreed amount. As there is no

Presiding Officer in the Debt Recovery Tribunal, the

petitioner is unable to move the Tribunal. Now the

respondents are threatening to take possession of the

petitioner's property. Hence, the Writ Petition.

3. Heard; the learned Counsel appearing for the

petitioner and the learned Counsel appearing for the

respondents.

4. The learned Counsel appearing for the

respondents submitted that the respondents have

already taken physical possession of the property

invoking the provisions of the Act. The petitioner has

trespassed into the property and the respondents are

initiating separate proceedings to re-possess the

property. The respondents are not willing to permit the

petitioner to pay off the outstanding amount in

installments. The writ petitions are meritless, and may

be dismissed.

WP(C) NO. 15383 & 15942 OF 2023

5. The Hon'ble Supreme Court in South Indian

Bank Ltd vs. Naveen Mathew Philip (2023 LiveLaw

(SC) 320), after adverting to a myriad of earlier judicial

pronouncements, has categorically declared that High

Courts shall not, unless in extra ordinary

circumstances, interfere with proceedings initiated

under the Securitisation and Reconstruction of

Financial Assets and Enforcement of Security Interest

Act, 2002, in writ proceedings under Article 226 of the

Constitution of India.

6. Having considered the pleadings and materials

on record and taking note of the fact that this Court has

already passed Ext.P3 judgment and thereafter the

petitioner has filed two writ petitions for identical

relief, I do not find any extraordinary circumstances to

entertain the writ petitions by exercising the

discretionary powers of this Court under Article 226 of

the Constitution India. Nonetheless, it would be upto WP(C) NO. 15383 & 15942 OF 2023

the petitioner to work out his statutory remedies in

accordance with law.

Resultantly, the writ petitions are dismissed

without prejudice to the right of the petitioner to work

out his remedies in accordance with law.

Sd/-

C.S.DIAS JUDGE rkc/27.06.23 WP(C) NO. 15383 & 15942 OF 2023

APPENDIX OF WP(C) 15383/2023

PETITIONER EXHIBITS

Exhibit P1 THE TRUE COPY OF THE NOTICE DATED 03-01-

2023 ISSUED BY THE ADVOCATE COMMISSIONER TO THE PETITIONER

Exhibit P2 THE TRUE COPY OF THE JUDGMENT DATED 17-

03-2023 PASSED BY THIS HONORABLE COURT IN WP (C ) NO. 1235/2023

Exhibit P3 THE TRUE COPY OF THE PROPOSAL DATED 22-

03-2023 SUBMITTED BY THE PETITIONER BEFORE THE FIRST RESPONDENT

Exhibit P4 THE TRUE COPY OF THE REPLY DATED 18-04-

2023 SENT BY THE SECOND RESPONDENT TO THE PETITIONER WP(C) NO. 15383 & 15942 OF 2023

APPENDIX OF WP(C) 15942/2023

PETITIONER EXHIBITS

Exhibit-P1 A TRUE COPY OF THE STATEMENT OF ACCOUNT DATED 09.11.2022 ISSUED BY THE FIRST RESPONDENT.

Exhibit.P2 A TRUE COPY OF THE NOTICE PUTTING THE DATE AS 03.01.2023 BY THE ADVOCATE- COMMISSIONER TO THE PETITIONER.

Exhibit-P3 A TRUE COPY OF THE JUDGMENT DATED 17.03.2023 IN WPC NO.1235/2023.

RESPONDENT EXHIBITS

Exhibit-R1(a) True copy of the judgment in WP(C )No-

1235/2023 of Honble High court of Kerala dated 17.03.2023

PETITIONER EXHIBITS

Exhibit4.P4 A TRUE COPY OF THE REPLY DATED 18.04.2023 ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER.

RESPONDENT EXHIBITS

Exhibit-R1(b) True copy of the reply sent by the Respondent No-1 to Petitioner dated 18.04.2023

Exhibit-R1(c) True copy of the police complaint submitted by the Respondent No-1 before SHO North Paravur Police Station dated 24.05.2023

Exhibit-R1(d) True copy of the receipt in Petition No-

52546/2023 issued by SHO North Paravur Police Station dated 24.05.2023 WP(C) NO. 15383 & 15942 OF 2023

PETITIONER ANNEXURES

Annexure A1 TRUE COPY OF THE MEDICAL PRESCRIPTION DATED 28.05.2023

Annexure A1(a) TRUE COPY OF THE MEDICAL CERTIFICATE DATED 28.05.2023