Kerala High Court
Shibin Prakash vs Kerala State Co-Operative Bank on 15 February, 2024
Author: N.Nagaresh
Bench: N.Nagaresh
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE N.NAGARESH
THURSDAY, THE 15TH DAY OF FEBRUARY 2024/26TH MAGHA, 1945
WP(C) NO. 5982 OF 2024
PETITIONERS:
1 SHIBIN PRAKASH,
AGED 44 YEARS,
S/O JAYAPRAKASH,
MANCHERI HOUSE,
MOOKKUTHALA,
PIDAVANNUR P.O.,
NANNAMUKKU,
MALAPPURAM, PIN - 679574
2 SUSI M,
AGED 70 YEARS,
W/O JAYAPRAKASH,
MANCHERI HOUSE, MOOKKUTHALA,
PIDAVANNUR P.O.,
NANNAMUKKU,
MALAPPURAM, PIN - 679574
BY ADVS.
R.MAHESH MENON
SACHIN.P.K
VARGHESE XAVIER
RESPONDENTS:
KERALA STATE CO-OPERATIVE BANK
REPRESENTED BY ITS AUTHORIZED OFFICER, RECOVERY
DEPARTMENT, PB NO. 8, MANCHERY ROAD, UPHILL,
MALAPPURAM, PIN - 676505
BY ADVS.
SRI.GILBERT GEORGE CORREYA
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 15.02.2024, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
W.P.(C) No.5982/2024
:2:
JUDGMENT
Dated this the 15th day of February, 2024
The petitioners have approached this Court
aggrieved by the coercive proceedings for recovery of
financial advance made by the Kerala State Co-operative
Bank to the petitioners, invoking the provisions of the
Securitisation and Reconstruction of Financial Assets and
Enforcement of Security Interest Act, 2002.
2. The Bank paid ₹40 lakhs to the petitioners as
Mortgage Loan in the year 2017. The petitioners state that
though the petitioners made remittances promptly during
the initial repayment period of the financial advance, they
could not pay the repayment instalments promptly later. The
repayment of loan fell into arrears later. It happened due to
reasons beyond the control of the petitioners.
3. Though the petitioners requested the Bank to
permit the petitioners to repay the overdue amounts in easy
monthly instalments, the Bank authorities were not yielding.
The authorities, instead, started coercive proceedings,
invoking the provisions of the Securitisation and
Reconstruction of Financial Assets and Enforcement of
Security Interest Act, 2002 and the Security Interest
(Enforcement) Rules, 2002 and issued Ext.P1 notice.
4. The petitioners state that they are still in a
position to clear the overdue amounts towards the loan, if
sufficient time is given to clear the dues in easy monthly
instalments. If the respondent is permitted to continue with
the coercive proceedings and auction the secured assets
provided by the petitioners, they will be put to untold
hardship and loss.
5. Standing Counsel entered appearance on behalf
of the Bank and denied all the statements made by the
petitioners. On behalf of the respondent, it is submitted that
the loan was given to the petitioners in the year 2017. The
petitioners committed default in repaying the loan.
6. The Bank repeatedly reminded the petitioners
and required them to clear the dues. The petitioners
deliberately omitted to do so. In the circumstances, the
Bank had no other go, than to proceed against the
petitioners invoking the provisions of the Securitisation and
Reconstruction of Financial Assets and Enforcement of
Security Interest Act, 2002. The impugned Ext.P1 notice
was issued in these circumstances. The petitioners have
not advanced any legal reasons to thwart the coercive
proceedings initiated by the Bank.
7. The Standing Counsel, however, submitted that if
the petitioners are ready and willing to make a substantial
payment soon and remit the balance overdue amount
immediately thereafter, a short breathing time can be
granted to the petitioners to clear the dues. The Standing
Counsel submitted that the outstanding amount due to the
Bank from the petitioners as on 15.02.2024 is ₹57,61,975/-
and the overdue amount as on 15.02.2024 is ₹7,92,431/-
8. I have heard the counsel for the petitioners and
the Standing Counsel representing the Bank.
9. The specific case of the petitioners is that the
petitioners have been making the repayment and
maintaining the loan account initially. The default in
repayment occurred lately due to reasons beyond the
control of the petitioners. The petitioners have provided
substantial security which will safeguard the interest of the
Bank.
10. In the facts and circumstances of the case, I am
inclined to dispose of the writ petition giving a short and
reasonable time to the petitioners to clear off the liability.
11. The writ petition is therefore disposed of with the
following directions:
(i) The petitioners shall remit an amount
of ₹1 lakh within a period of one month
from today.
(ii) The petitioners shall remit the
balance overdue amount in subsequent
consecutive 12 equal monthly instalments
thereafter, along with accruing interest and
other Bank charges, if any.
(iii) If the petitioners commit default in
making payments as directed above, the
respondents will be at liberty to continue
with coercive proceedings against the
petitioners in accordance with law.
(iv) The petitioners shall also pay current
EMIs along with the aforesaid payments.
(v) If the petitioners pay the amount as
directed above, any coercive proceedings
against the petitioners will stand deferred.
Sd/-
N. NAGARESH
JUDGE
SR
APPENDIX OF WP(C) 5982/2024
PETITIONER'S EXHIBITS:
Exhibit P-1 THE TRUE COPY OF THE DEMAND NOTICE
DATED 03.11.2023 UNDER SECTION 13 (2)
OF THE SARFAESI ACT DEMANDING TO PAY
AN AMOUNT OF RS. 55,82,548/- (RUPEES
FIFTY-FIVE LAKHS EIGHTY-TWO THOUSAND
FIVE HUNDRED AND FORTY-EIGHT ONLY)
WITHIN 60 DAYS FROM RECEIVING THE
NOTICE
