Kerala High Court
Anilkumar P vs Axis Bank on 5 April, 2024
Author: N.Nagaresh
Bench: N.Nagaresh
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE N.NAGARESH
FRIDAY, THE 5TH DAY OF APRIL 2024 / 16TH CHAITHRA, 1946
WP(C) NO. 8761 OF 2024
PETITIONER:
ANILKUMAR P.,
AGED 60 YEARS
S/O. KESAVAN, PADUKANI (HOUSE), CHAKKALAKUTH
NILAMBUR P O, MALAPPURAM, PIN - 679329
BY ADVS.
M.S.KIRAN
LISHA WILLIAM
REMESH KARTHA E.K.
ROHITH R. KARTHA
RESPONDENTS:
1 AXIS BANK,
NILAMBUR BRANCH, KEERTHI PADI,
BUILDING NO.10/12, AYISHA TOWER,
OPPOSITE SREE SUBRAMANYA SWAMY TEMPLE,
NILAMBUR, KERALA, PIN - 679329
REPRESENTED BY ITS MANAGER
2 THE AUTHORIZED OFFICER,
UNDER SARFAESI ACT, 2002,AXIS BANK,
PARAYANCHERI, MAVOOR ROAD,KOZHIKODE, PIN - 673016
BY ADVS.
MADHU RADHAKRISHNAN
NELSON JOSEPH
M.D.JOSEPH
DEEPAK ASHOK KUMAR
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 05.04.2024, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
WP(C) No.8761 of 2024
2
JUDGMENT
Dated this the 5th day of April, 2024
The petitioner availed a Home Loan of ₹19,57,635/- for
construction of a residential house on 21.12.2017 from the
1st respondent-Bank. The total amount sanctioned was
₹33,32,701/-, but the amount disbursed was ₹22,57,635/-.
Out of this ₹22,57,635/-, an amount of ₹2,99,400/- was
debited as insurance amount by the Bank. The loan availed
by the petitioner was secured by mortgaging 3.23 Ares of land
with building constructed in Nilambur Village, Nilambur Taluk
in Malappuram District.
2. The petitioner states that he had paid substantial
amounts to the loan account initially. But, thereafter, due to
Covid-19 pandemic, the petitioner became unable to remit the
monthly instalments. Hence, the respondents initiated
SARFAESI proceedings against the petitioner. The Bank
issued a settlement offer as per Ext.P2. As per Ext.P2, the
petitioner has to pay an amount of ₹16,00,000/- by
30.11.2023 and balance ₹2,00,000/- by 31.12.2023. The
petitioner remitted ₹14,00,000/- on 07.11.2023, but
unfortunately, he became movement less and was diagnosed
as suffering from L45 L5S1 DISC BULGE RIGHT SCIATICA
and became bedridden four weeks due to severe pain and
was under treatment. The petitioner informed his situation to
the 1st respondent-Bank.
3. The petitioner submitted that the petitioner when
relieved of his aggravated pain struggled a lot and adjusted an
amount of ₹4,00,000/- from his well wishers and relatives.
The petitioner approached the Bank on 20.01.2024 and
informed the 1st respondent-Bank that he is ready with the
balance amount and requested them to permit him to remit
the amount. But the 1st respondent refused to accept the
amount as the time of remittance expired on 31.12.2023. The
Advocate Commissioner issued notice on 01.02.2024 which
was received by the petitioner on 07.02.2024, which directed
the petitioner to vacate the premises by 09.02.2024. The
petitioner's representation before the respondents is pending
consideration. Now, the petitioner is served with Ext.P8 notice
by the Advocate Commissioner directing to vacate the
premises by 07.03.2024. The petitioner is ready and willing to
pay the balance amount of ₹4,00,000/- with delayed period
interest.
4. The petitioner approached the 1 st respondent-Bank
for availing the settlement of the loan account and paid almost
80% of the settled amount and due to an unfortunate
situation, the petitioner was unable to remit the balance
amount. Immediately after 50% recovery, he rushed to the
Bank after a 20 days delay with the balance amount. Now, the
1st respondent-Bank is trying to grab the only residential
property of the petitioner due to a delay of 20 days for
payment of ₹4,00,000/-, which is the remaining settlement
amount. Hence, the petitioner is before this Court.
5. Standing Counsel entered appearance and resisted
the writ petition. On behalf of the respondents, it is submitted
that the petitioner has availed a credit facility of ₹22,57,635/-
on 08.03.2017 from the 1st respondent. The petitioner was
highly irregular in payment towards the credit facility. The
petitioner has defaulted the repayment within one year of
availing the credit facility. Thus, the account was classified as
NPA on 10.12.2018. Further, notice under Section 13(2) of
the Securitisation and Reconstruction of Financial Assets and
Enforcement of Security Interest Act, 2002 was issued on
30.04.2019 and the loan facility was recalled. The petitioner
has not remitted any amount after 2018.
6. The Bank has provided ample opportunities to the
petitioner for repayment. Later, when the Bank has proceeded
with further measures under the SARFAESI Act 2002, the
petitioner requested the Bank for One Time Settlement. As
per the request of the petitioner, the Bank has sanctioned
Ext.P2 One Time Settlement proposal for an amount of ₹18
lakhs. At that point of time, the total outstanding was
₹39,02,738/-. As per Ext.P2 proposal, the petitioner agreed to
remit an amount of ₹16 lakhs on or before 30.11.2023 and ₹2
lakhs on or before 30.12.2023. The Bank has waived off
maximum interest and also a small margin of principal
outstanding. It was informed to the petitioner that in case of
default of any one condition, the One Time Settlement
proposal will get cancelled. The petitioner remitted only an
amount of ₹14 lakhs and Ext.P2 One Time Settlement facility
was automatically cancelled on 30.11.2023.
7. Thereafter, the Bank has proceeded with
SARFAESI measures and the Advocate Commissioner
appointed in MC No.633/2023 has issued notice for taking
physical possession on 07.03.2024. At this Juncture, the
petitioner has filed this writ petition. Now, the total outstanding
amount payable by the petitioner is ₹21,43,947 as on
26.03.2024.
8. The petitioner approached the Bank only after two
months from expiry of the One Time Settlement facility. At that
point of time, there is no One Time Settlement sanction in
existence as the earlier sanction was expired. It is true that
the petitioner has approached the Legal Services Authority.
However, it is false that on instruction of Legal Services
Authority, the Bank has not proceeded. The Bank also
appeared before the Legal Services Authority and narrated
the true facts of the case.
9. Further, the Legal Services Authority, considering
the procedures initiated by the respondents in accordance
with law, has refused to interfere with the same. Further, the
petitioner has assured the 1st respondent-Bank that he will
submit a fresh One Time Settlement proposal for the balance
outstanding amount. On such assurance only the Bank has
deferred the taking of physical possession.
10. It is already informed to the petitioner that Ext.P2
One Time Settlement facility was expired on 30.11.2023 itself.
Further, as per the assurances, the petitioner failed to submit
any fresh One Time Settlement proposal and the 1st
respondent-Bank was constrained to proceed with further
recovery measures by issuing Ext.P8 notice. It is wrong to
state that the petitioner approached the Bank in 20 days time
for balance One Time Settlement payment. The OTS facility
was expired on 30.11.2023 itself and the petitioner has
approached the Bank only when the respondents proceeded
with physical possession.
11. I have heard the learned counsel for the petitioner
and the learned Standing Counsel representing the
respondents.
12. It is not in dispute that the 1 st respondent-Bank has
offered a One Time Settlement proposal to the petitioner on
09.11.2023. The settlement was for an amount of ₹18 lakhs,
out of which ₹16 lakhs ought to have been paid on or before
30.11.2023 and ₹2 lakhs ought to have been paid on or
before 30.12.2023. The petitioner paid ₹14 lakhs on
17.11.2023. The petitioner could not pay the balance amount
of ₹2 lakhs on or before 30.11.2023.
13. The pleadings in the writ petition would indicate
that the petitioner had serious health problems and according
to the counsel for the petitioner, the petitioner was motionless
during this period. Consequent to which, the amounts could
not be raised and paid before 30.11.2023. Subsequently,
order was passed by the Bank for taking physical possession
of the property. The petitioner thereupon approached this
Court and pursuant to the directions of this Court, the
petitioner paid the balance amount due to under the One Time
Settlement amounting to ₹4 lakhs on 19.03.2024.
14. The Standing Counsel representing the Bank would
argue that as the petitioner did not remit the entire One Time
Settlement amount by 30.12.2023, the One Time Settlement
has lapsed and this Court in exercise of the powers under
Article 226 of the Constitution of India, cannot enlarge the
time of One Time Settlement in view of the judgment of the
Hon'ble Apex Court in State Bank of India v. Arvindra
Electronics Private Limited [(2023) 1 SCC 540].
15. The pleadings and arguments in the writ petition
would, however, indicate that the petitioner has strived to
remit the One Time Settlement amount and a substantial
major portion of the amount was paid on 17.11.2023 much
before the due date. It is the medical condition of the
petitioner that caused delay in payment of the subsequent
amount. The Hon'ble Apex Court has held in Vijayakumari P.
and another v. Indian Bank represented by its Chief Manager
[2018 (14) SCC 735] that if the agreed amount stood paid
though with some delay, condonation of delay is a possible
course of action, if the grounds for delay justified a departure
from what was also agreed upon, ie. the right of a Bank to
recover the entire dues.
16. In the facts of the case, I am inclined to take a
reasonable view in favour of the petitioner to bring a quietus to
the dispute.
The writ petition is accordingly disposed of directing that
if the petitioner remits interest at the rate of 18% for the
belated payment of ₹4 lakhs from the due date of payment
under the One Time Settlement agreement within a period of
two weeks, the 1st respondent-Bank shall treat the account as
settled under the One Time Settlement agreement arrived at
on 09.11.2023.
Sd/-
N.NAGARESH
JUDGE
spk
APPENDIX OF WP(C) 8761/2024
PETITIONER EXHIBITS
Exhibit P1 A TRUE COPY OF THE DISBURSEMENT MEMO
Exhibit P2 A TRUE COPY OF THE COMMUNICATION NO.
AXISB 2023-2024/2902748 DATED
09.11.2023 ISSUED BY THE 1ST
RESPONDENT
Exhibit P3 A TRUE COPY OF THE TRANSACTION DETAILS
SHOWING REMITTANCE OF RS.14,00,000/-
Exhibit P4 A TRUE COPY OF THE MEDICAL REPORTS ON
VARIOUS DATES
Exhibit P5 A TRUE COPY OF THE NOTICE DATED
01.02.2024 ISSUED BY THE ADVOCATE
COMMISSIONER
Exhibit P6 A TRUE COPY OF THE POSTAL COVER DATED
05.02.2024
Exhibit P7 A TRUE COPY OF THE REPRESENTATION
SUBMITTED BY THE PETITIONER BEFORE THE
1ST RESPONDENT DATED 23.02.2024
Exhibit P8 A TRUE COPY OF THE NOTICE ISSUED BY
ADVOCATE COMMISSIONER DATED 23.02.2024
