Suja Shajilal vs Authorised Officer
2023 Latest Caselaw 9494 Ker

                IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                  PRESENT
             THE HONOURABLE MR. JUSTICE DINESH KUMAR SINGH
         TUESDAY, THE 5TH DAY OF SEPTEMBER 2023 / 14TH BHADRA, 1945
                           WP(C) NO. 29154 OF 2023
PETITIONER/S:
           SUJA SHAJILAL, AGED 56 YEARS, W/O SHAJILAL, POURNAMI ,
           AYALARA P.O, EROOR , ANCHAL, PIN - 691312

             BY ADV C.S.SUMESH


RESPONDENT/S:
     1    AUTHORISED OFFICER STATE BANK OF INDIA, SECURED ASSET
          RECOVERY BRANCH, 7TH FLOOR, VANKARATH TOWERS,
          PALARIVATTOM , ERNAKULAM, PIN - 682024

     2       STATE BANK OF INDIA ANCHAL BRANCH, CHELAPPALLLIL
             BUILDINGS, ANCHAL P.O, KOLLAM REPRESENTED BY BRANCH
             MANAGER, PIN - 691306


OTHER PRESENT:
           JITHESH MENON -SC-SBI


         THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
05.09.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 W.P.(C) No.29154/2023
                                     -2-




                        JUDGMENT

The present writ petition under Article 226 of the

Constitution of India has been filed for a direction to the

respondent Bank to take a decision on the One-Time

Settlement proposal submitted by the petitioner.

2. The petitioner, husband and the partnership firm

M/s Ponnu Food Products, in which the petitioner is said to be

a Managing Partner, are in default of repayment of the loan

taken from the respondent Bank. As per the Bank, as of today,

there is an outstanding amount of Rs.15.66 crores. Despite

notice, when the petitioner failed to discharge the liability, the

account was categorized as NPA in 2018. The Bank has

undertaken the SARFAESI proceedings by filing an application

before the concerned Chief Judicial Magistrate under Section

14 of the SARFAESI Act. In pursuance of the orders passed by W.P.(C) No.29154/2023

the Chief Judicial Magistrate, the Advocate Commissioner has

issued a notice (Ext.P9) on 19.08.2023 for taking possession of

the secured asset of the petitioner. Before the Ext.P9 notice,

the petitioner had submitted an application in Ext.P4 for a

One-Time Settlement of the outstanding loan amount and has

proposed Rs.5.75 crores. The Bank vide letter dated 05.08.2023

had asked the petitioner to deposit 5% upfront fee of the

proposed amount. The petitioner admittedly has not

deposited the said fee.

3. Learned Counsel for the Bank says that in the

absence of the fee, as demanded by a letter dated 05.08.2023,

the petitioner's proposal for A One-Time Settlement cannot be

processed. Therefore, it should be deemed that the

petitioner's proposal for A One-Time Settlement has been

rejected in the absence of non-payment of the demanded fee

of 5%.

W.P.(C) No.29154/2023

4. Learned Counsel for the petitioner, however,

submits that the petitioner is not in a position to deposit the

5% upfront fee as he is suffering from cancer and has no means

to comply with the letter dated 05.08.2023.

5. Having considered the submissions and the record

of the case, this Court cannot step in and direct the Bank to

consider the One-Time Settlement proposal of the petitioner

without payment of the requisite upfront fee of 5% of the

proposed amount. If the petitioner is serious enough

regarding her proposal of One-Time Settlement, she should

deposit the 5% fee of the proposed amount within a period of

ten days from today. In case the petitioner fails to deposit the

said amount, the Bank may proceed with the SARFAESI

proceedings. For a period of ten days from today, the

possession of the secured asset in pursuance of notice in Ext.P9

shall not be taken.

W.P.(C) No.29154/2023

With the aforesaid direction, the present writ petition

stands disposed of.

Sd/-

DINESH KUMAR SINGH JUDGE

jjj W.P.(C) No.29154/2023

APPENDIX OF WP(C) 29154/2023 PETITIONER EXHIBITS

Exhibit P1 THE TRUE COPY OF THE DISCHARGE SUMMARY DATED 18.08.2022 ISSUED FROM RCC THIRUVANANTHAPURAM

Exhibit P2 THE TRUE COPY OF THE RELEVANT PORTIONS OF SALE NOTICE DATED 13/05/2022 ISSUED BY THE 1ST RESPONDENT TO THE PETITIONER

ExhibitP 3 THE TRUE COPY OF THE LETTER DATED 06.04.2022 , BEARING NO KFC/HO/CR/27/2022-23 ISSUED FROM KFC TO THE PETITIONER

Exhibit P4 THE TRUE COPY OF THE EMAIL DATED 23/05/2023 ISSUED BY SHAJILAL TO THE CHIEF MANAGER ,SARB ,ERNAKULAM

Exhibit P5 THE TRUE COPY OF THE EMAIL DATED 07.07.23 BY CHIEF MANAGER SARB BRANCH OF SBI , ERNAKULAM

ExhibitP 6 THE TRUE COPY OF THE LETTER DATED 08/12/22 BEARING NO KFC/HO/ CREDIT /1409/2022-23 ISSUED BY KFC TO SHAJILAL,

Exhibit P7 THE TRUE COPY OF THE MAIL DATED 08/08/2023 ISSUED BY SHAJILAL TO THE SBI SARB , ERNAKULAM

Exhibit P8 THE TRUE COPY OF THE MAIL DATED 23/08/2023 , ANNEXING THE COMPROMISE OFFER LETTER , ISSUED BY SHAJILAL TO THE ASSISTANT GENERAL MANAGER OF SBI ,SARB BRANCH , ERNAKULAM

Exhibit P9 THE TRUE COPY OF THE NOTICE ISSUED BY ADVOCATE COMMISSIONER -SANTHOSH KUMAR PJ, DATED 19/08/2023

Exhibit P10 THE TRUE COPY OF THE JUDGMENT DATED 29/03/2023 IN WP(C)11064/2023 OF THIS HONBLE COURT W.P.(C) No.29154/2023

Exhibit P11 THE TRUE COPY OF THE JUDGMENT DATED 28/09/2022 IN OP(DRT) 310/2022 OF THIS HONBLE COURT