Kerala High Court
Smt. Bushara Aseez vs The Authorised Officer on 11 April, 2024
Author: N.Nagaresh
Bench: N.Nagaresh
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE N.NAGARESH
THURSDAY, THE 11TH DAY OF APRIL 2024/22ND CHAITHRA, 1946
WP(C) NO. 6818 OF 2024
PETITIONER:
BUSHARA ASEEZ
AGED 43 YEARS
W/O. ASEEZ THARAVATTATH,
THARAVATTATH HOUSE,
THIRUVALLUR P.O., VATAKARA,
KOZHIKODE-, PIN - 673541
BY ADVS.
TERRY V.JAMES
ABRAHAM KOLLINAL
RAKHY BABY
RESPONDENTS:
1 THE AUTHORISED OFFICER
[UNDER THE SECURITISATION AND RECONSTRUCTION OF
FINANCIAL ASSETS AND ENFORCEMENT OF SECURITY
INTEREST ACT, 2002] SOUTH INDIAN BANK, REGIONAL
OFFICE KOZHIKODE, 1ST FLOOR, HAPPY TOWERS,
VAIKKOM MOHAMMED BASHEER ROAD, MANANCHIRA(PO),
KOZHIKODE-., PIN - 673001
2 THE SENIOR MANAGER
SOUTH INDIAN BANK, VATAKARA BRANCH,
ARKAY BUILDING, NEAR HOP EDODI,
VATAKARA, KOZHIKODE, PIN - 673101
3 THE BRANCH MANAGER
SOUTH INDIAN BANK, VATAKARA BRANCH,
ARKAY BUILDING, NEAR HOP EDODI,
VATAKARA, KOZHIKODE-, PIN - 673101
BY SRI.P.A.AUGUSTINE
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 11.04.2024, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
W.P.(C) No.6818/2024
:2:
N. NAGARESH, J.
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W.P.(C) No.6818 of 2024
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Dated this the 11th day of April, 2024
JUDGMENT
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The petitioner, who has borrowed a Term Loan of
₹10 lakhs and an Overdraft facility of ₹10 lakhs from the
South Indian Bank, seeks to direct the respondents to
regularise/renew the Overdraft facility and to direct the
respondents to permit the petitioner to clear outstanding
amounts due in 24 equal monthly instalments.
2. The petitioner and her husband availed a Term
Loan of ₹10 lakhs in the year 2017 and an Overdraft facility
of ₹10 lakhs in the year 2018. Residential house owned by
the petitioner situated in 11.11 Ares of land in Thiruvalloor
Village was mortgaged as security.
3. The petitioner states that the Covid-19 pandemic
adversely affected the business of the husband of the
petitioner and the loan accounts fell into arrears.
4. The respondents classified the loan accounts as
NPA and issued Ext.P2 recall notice on 13.04.2021
demanding payment of ₹21,99,909.35. Ext.P3 Section 13(2)
notice was issued on 13.07.2021 demanding ₹22,68,086.51.
The petitioner states that after receipt of Ext.P3 notice, about
₹2,06,500/- was remitted by the husband of the petitioner.
An amount of ₹50,000/- was again paid on 03.01.2023.
Without crediting the amounts remitted by the petitioner and
her husband, the 1st respondent has issued Ext.P6 sale
notice.
5. The petitioner thereupon filed W.P.(C)
No.12098/2023. The petitioner remitted ₹4 lakhs pursuant to
the directions of this Court. However, the 2 nd respondent as
per Ext.P10 letter dated 09.05.2023 rejected the request for
payment in instalments. The 2nd respondent directed that the
Overdraft facility should be closed before 31.05.2023.
6. The petitioner therefore again approached this
Court filing W.P.(C) No.16463/2023. The said writ petition
was dismissed by this Court as per Ext.P11 judgment. On
16.08.2023, pursuant to an order of the Chief Judicial
Magistrate's Court, Kozhikode, an Advocate Commissioner
issued notice to the petitioner threatening taking over of
physical possession of the mortgaged property. Though the
petitioner filed SA No.477/2023 challenging Ext.P12 notice,
the Debts Recovery Tribunal, by Ext.P15 order dated
05.02.2024, dismissed the SA. Hence, the petitioner is
before this Court.
7. The petitioner states that Exts.P3 and P6 notices
are issued in violation of the provisions of the SARFAESI Act.
The respondents omitted to consider the fact that the
petitioner is willing to pay off the overdues within a
reasonable time. The respondents have not made any
valuation of the mortgaged property before putting the
property to sale as per Ext.P6. The petitioner therefore
seeks to direct the respondents to regularise the Overdraft
facility and to permit the petitioner to clear the outstanding in
instalments.
8. Standing Counsel entered appearance and
resisted the writ petition on behalf of the respondents. The
petitioner's husband consistently defaulted in making
remittances. The petitioner earlier approached this Court
filing W.P.(C) No.12098/2023. This Court directed the
petitioner to pay an amount of ₹4 lakhs on or before
30.04.2023 and approach the Bank with a proposal for
repaying of the balance amount. However, the petitioner did
not pay any amount thereafter.
9. The petitioner later filed W.P.(C) No.16463/2023.
This Court considered the case of the petitioner and declined
to interfere in the matter. The writ petition was dismissed as
per Ext.P11 judgment. The intention of the petitioner is to
delay and defeat the process of the Bank for recovery of
dues. The writ petition is therefore liable to be dismissed,
contended the Standing Counsel.
10. I have heard the learned counsel for the petitioner
and the learned Standing Counsel representing the
respondents.
11. Against the Overdraft facility availed by the
petitioner of ₹10 lakhs in the yer 2017, the outstanding
amount payable by the petitioner is ₹11,98,011/- as on
20.02.2024 which exceeds the OD limit. Against the
mortgage loan of ₹10 lakhs availed by the Bank in the year
2019, there is an outstanding of ₹9,33,271/-.
12. The petitioner had approached this Court earlier
twice and this Court declined to interfere in the matter in
W.P.(C) No.16463/2023. The petitioner has approached the
Debts Recovery Tribunal filing SA No.477/2023. The SA was
dismissed as per Ext.P15 order. Against Ext.P15 order, the
petitioner has an alternate remedy to approach the Debts
Recovery Appellate Tribunal under Section 18 of the
SARFAESI Act.
13. In the facts of the case, I do not find any reason to
interfere with the matter in exercise of the powers under
Article 226 of the Constitution of India.
The writ petition is therefore dismissed.
Sd/-
N. NAGARESH, JUDGE
aks/06.04.2024
APPENDIX OF WP(C) 6818/2024
PETITIONER'S EXHIBITS
Exhibit P1 TRUE COPY OF NOTICE DATED 25.3.2021
ISSUED BY THE 3RD RESPONDENT TO THE
PETITIONER/HUSBAND.
Exhibit P2 TRUE COPY OF RECALL NOTICE DATED
13.4.2021 SENT BY THE 3RD RESPONDENT
TO THE PETITIONER AND HER HUSBAND.
Exhibit P3 TRUE COPY OF NOTICE DATED 13.7.2021
SENT BY THE 1ST RESPONDENT UNDER
SECTION 13(2) OF THE SARFAESI ACT TO
THE PETITIONER AND HER HUSBAND.
Exhibit P4 TRUE COPY OF CHALLAN EVIDENCING
PAYMENT OF RS. 13,000/-RS. 87,000/-,
RS. 30,000/-, RS. 13,000/-, RS.
38,700/- AND RS. 24,800/- MADE BY THE
PETITIONER/HUSBAND TO THE RESPONDENT
BANK.
Exhibit P5 TRUE COPY OF POSSESSION NOTICE DATED
15.3.2022 SENT BY THE 1ST RESPONDENT
TO THE PETITIONER.
Exhibit P6 TRUE COPY OF SALE NOTICE DATED
24.11.2022 ISSUED BY THE 1ST
RESPONDENT TO THE PETITIONER AND HER
HUSBAND.
Exhibit P7 TRUE COPY OF JUDGMENT DATED 5.4.2023
OF THIS HON'BLE COURT IN W.P.(C)
Exhibit P8 TRUE COPY OF LETTER DATED 28.4.2023 OF
THE PETITIONER'S HUSBAND ISSUED
THROUGH THE PETITIONER TO THE 3RD
RESPONDENT.
Exhibit P9 TRUE COPY OF TERM LOAN PASS SHEET OF
THE PETITIONER ISSUED BY THE
RESPONDENT BANK FOR THE PERIOD
4.11.2017 TO 21/5/2023.
Exhibit P10 TRUE COPY OF LETTER DATED 9.5.2023
SENT BY THE 2ND RESPONDENT TO THE
PETITIONER
Exhibit P11 TRUE COPY OF THE JUDGEMENT DATED
Exhibit P12 TRUE COPY OF THE NOTICE OF THE
ADVOCATE COMMISSIONER NOTICE DATED
16/8/2023
Exhibit P13 TRUE COPY OF THE SA NO 447/2023 FILED
BY THE PETITIONER BEFORE THE DRT
ERNAKULAM WITHOUT ANNEXURES
Exhibit P14 TRUE COPY OF THE WRITTEN STATEMENRT
FILED BY THE RESPONDENTS IN SA
447/2023 WITHOUT ANNEXURES
Exhibit P15 TRUE COPY OF THE ORDER DATED 5/2/2024
IN SA 447/2023 DRT ERNAKULAM
