Davis Abraham vs Canara Bank
2023 Latest Caselaw 11050 Ker

         IN THE HIGH COURT OF KERALA AT ERNAKULAM
                            PRESENT
              THE HONOURABLE MR.JUSTICE N.NAGARESH
THURSDAY, THE 26TH DAY OF OCTOBER 2023 / 4TH KARTHIKA, 1945
                    WP(C) NO. 35195 OF 2023
PETITIONER:

         DAVIS ABRAHAM
         AGED 34 YEARS
         S/O. LATE. KUNJUMON PROPRIETOR ST. THOMAS CASHEW
         INDUSTRIES SANTHI BHAVAN, CHIRATTAKONAM
         THALACHIRA P.O, KOTTARAKKARA,
         KOLLAM, PIN - 691546

         BY ADVS.
         V.PHILIP MATHEWS
         ABY SKARIA


RESPONDENTS:

    1    CANARA BANK
         KOTTARAKKARA BRANCH SREE VIGNESHWARA ARCADE,
         OYOOR ROAD,KOTTARAKKARA, KOLLAM
         REPRESENTED BY ITS MANAGER, PIN - 691506
    2    AUTHORISED OFFICER
         CANARA BANK KOTTARAKKARA BRANCH
         SREE VIGNESHWARA ARCADE, OYYOOR ROAD,
         KOTTARAKKARA, KOLLAM, PIN - 691506
    3    THE CHIEF MANAGER
         CANARA BANK SREE VIGNESWARA ARCADE
         OYOOR ROAD, KOTTARAKKARA KOLLAM, PIN - 691506

         SRI.M.GOPIKRISHNAN NAMBIAR, STANDING COUNSEL

     THIS WRIT PETITION       (CIVIL) HAVING COME UP     FOR
ADMISSION ON 26.10.2023,      THE COURT ON THE SAME      DAY
DELIVERED THE FOLLOWING:
 WP(C) No.35195 of 2023


                               2




                         JUDGMENT

Dated this the 26th day of October, 2023

The petitioner has approached this Court seeking to

direct the respondents to permit the petitioner to pay the sum

of ₹2,70,00,000/- as mentioned in Ext.P5 in ten Equal Monthly

Installments after deposit of ₹67,50,000/- towards One Time

Settlement and to defer all proceedings for sale of properties

based on Exts.P7 to P9 till such payment is made.

2. The petitioner submits that if the respondents give

concrete assurance regarding One Time Settlement amount,

the petitioner can pay 25% of the amount first and settle the

loan account through One Time Settlement soon. However, in

the meanwhile, the respondents have taken coercive

proceedings and sale is sought to be effected on 31.10.2023.

Unless this Court interferes and directs the respondents to

give a concrete proposal on the One Time Settlement offer WP(C) No.35195 of 2023

and if the sale is proceeded with without such proposal, the

petitioner will be put to untold hardship.

3. Standing Counsel entered appearance on behalf of

the respondents and resisted the writ petition. The Standing

Counsel pointed out that this is only an attempt to prolong the

proceedings now initiated by the respondents. The petitioner

was given an offer of One Time Settlement as is evident from

Ext.P5. In Ext.P5, the respondents agreed to settle the

amount for ₹2.70 Crores on condition that the petitioner

makes a down payment of 25% towards the OTS proposal.

The petitioner did not accept that Ext.P5 proposal.

4. The Standing Counsel further submitted that the

respondents are still ready to settle the amount offered in

Ext.P5, provided the petitioner pays 25% of the amount

upfront before the sale.

5. I have heard the learned counsel for the petitioner

and the learned Standing Counsel representing the WP(C) No.35195 of 2023

respondents.

6. The respondents have issued Ext.P5

communication dated 04.09.2023 to the petitioner

appreciating the effort taken by the respondents for coming up

with an OTS proposal for ₹2.70 Crores. The respondents

wanted the petitioner to pay 25% of the amount as down

payment towards the OTS proposal. As there was no

assurance in the matter, the petitioner did not pay the amount.

7. Taking into consideration the entire facts and

circumstances of the case, I am of the view that the petitioner

should be given one more opportunity to bid for a One Time

Settlement.

In the circumstances of the case, the writ petition is

disposed of directing that the petitioner shall remit 12.5% of

the OTS proposal amount on or before 30.10.2023 and

another 12.5% of the OTS amount within a further period of

ten days thereafter. Once the petitioner makes 25% of the WP(C) No.35195 of 2023

amount as directed above, the respondents shall consider the

OTS proposal and take a final decision in the matter. If the

petitioner makes any defaults in making the remittance of 25%

as directed above, the respondents will be at liberty to

proceed with Exts.P7 to P9 sale notices.

Sd/-

N.NAGARESH JUDGE spk WP(C) No.35195 of 2023

APPENDIX OF WP(C) 35195/2023

PETITIONER'S EXHIBITS

Exhibit P1 COPY OF THE SANCTION MEMORANDUM ISSUED BY THE FIRST RESPONDENT Exhibit P2 A COPY OF THE DEMAND NOTICE DATED 17.1.2023 ISSUED BY SECOND RESPONDENT Exhibit P3 A COPY OF THE REPRESENTATION DATED 15-

5-2023 Exhibit P4 COPY OF THE REPRESENTATION DATED 18-

08-2023 BY PETITIONER TO THE BRANCH MANAGER Exhibit P5 A PHOTOCOPY OF THE LETTER DATED 04-09-

2023 FROM THE THIRD RESPONDENT Exhibit P5a TYPED COPY OF EXHIBIT P5 Exhibit P6 COPY OF LETTER DATED 11-09-2023 FROM PETITIONER TO THE THIRD RESPONDENT Exhibit P7 COPY OF THE SALE NOTICE DATED 20-09-

2023 REGARDING SALE OF PETITIONER'S PROPERTY HAVING AN EXTENT OF 125 ARES OF LAND AND RESIDENTIAL BUILDING AT VETTIKKAVALA ON 31-10-2023 ISSUED BY THE SECOND RESPONDENT Exhibit P8 COPY OF SALE NOTICE DATED 20.9.2023 REGARDING SALE OF PETITIONER'S PROPERTY Exhibit P9 COPY OF SALE NOTICE DATED 20-09-2023 REGARDING SALE OF PETITIONER'S MOTHER'S PROPERTY Exhibit P10 COPY OF THE JUDGMENT DATED 11-10-2023 IN W.P.(C) 31862/2023 Exhibit P11 COPY OF LETTER NUMBER CBKTRA/ RECOVERY / 2023 /STTC/ 02 DATED 13-10-2023