Divya V vs Can Fin Homes Ltd
2024 Latest Caselaw 5617 Ker

Kerala High Court

Divya V vs Can Fin Homes Ltd on 16 February, 2024

Author: N.Nagaresh

Bench: N.Nagaresh

        IN THE HIGH COURT OF KERALA AT ERNAKULAM
                            PRESENT
             THE HONOURABLE MR.JUSTICE N.NAGARESH
FRIDAY, THE 16TH DAY OF FEBRUARY 2024 / 27TH MAGHA, 1945
                     WP(C) NO. 6078 OF 2024
PETITIONER:

            DIVYA V.
            AGED 37 YEARS
            W/O ABHISHEK M., PALLITHAZHATHU VEEDU,
            AMBOORI P.O., THIRUVANANTHAPURAM.,
            PIN - 695505
            BY ADV J.G.SYAMNATH


RESPONDENT:

            CAN FIN HOMES LTD.
            BRANCH OFFICE, XII/504 E, ASIFF CENTRE,
            ALUMMOODU JUNCTION, NEYYATTINKARA P.O.,
            THIRUVANANTHAPURAM,
            REPRESENTED BY ITS AUTHORISED OFFICER .,
            PIN - 695121
            BY ADV C.AJITH KUMAR



     THIS     WRIT   PETITION   (CIVIL)   HAVING   COME    UP    FOR
ADMISSION    ON   16.02.2024,   THE   COURT   ON   THE    SAME   DAY
DELIVERED THE FOLLOWING:
 WP(C) NO. 6078 OF 2024
                                    ..2..




                          N.NAGARESH, J.
               ---------------------------------------------
                     W.P.(C) No.6078 of 2024
               ----------------------------------------------
             Dated this the 16th day of February, 2024

                         JUDGMENT

The petitioner has approached this Court aggrieved

by the coercive proceedings for recovery of financial advance

made by the Can Fin Homes Limited to the petitioner,

invoking the provisions of the Securitisation and

Reconstruction of Financial Assets and Enforcement of

Security Interest Act, 2002.

2. The respondent paid ₹10,60,000/- to the petitioner

and her husband as Hosing Loan in the year 2019. The

petitioner states that though the petitioner made remittances

promptly during the initial repayment period of the financial

advance, she could not pay the repayment instalments

promptly later due to Covid-19 pandemic. The repayment of

loan fell into arrears. It happened due to reasons beyond the WP(C) NO. 6078 OF 2024 ..3..

control of the petitioner.

3. Though the petitioner requested the Bank to permit

the petitioner 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 invoking Rule 8(6) of the Security

Interest (Enforcement) Rules, 2002.

4. The petitioner states that she is 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

petitioner, she will be put to untold hardship and loss. In the

meanwhile, the respondents are moving to sell the mortgaged

property of the petitioner.

WP(C) NO. 6078 OF 2024 ..4..

5. Standing Counsel entered appearance on behalf of

the Bank and denied all the statements made by the petitioner.

On behalf of the respondents, it is submitted that the loan was

given to the petitioner in the year 2019. The petitioner

committed default in repaying the loan.

6. The Bank repeatedly reminded the petitioner and

required her to clear the dues. The petitioner deliberately

omitted to do so. In the circumstances, the Bank had no other

go, than to proceed with sale of secured asset invoking the

provisions of the Securitisation and Reconstruction of

Financial Assets and Enforcement of Security Interest Act,

2002. The impugned Ext.P1 was issued in these

circumstances. The petitioner has not advanced any legal

reasons to thwart the coercive proceedings initiated by the

Bank.

7. The Standing Counsel, however, submitted that if

the petitioner is ready and willing to make a substantial

payment now and makes a One Time Settlement proposal, the WP(C) NO. 6078 OF 2024 ..5..

same can be considered. The Standing Counsel submitted

that the outstanding amount due to the Bank from the

petitioner as on 16.02.2024 is ₹12,35,354.50.

8. I have heard the counsel for the petitioner and the

Standing Counsel representing the Bank.

9. The specific case of the petitioner is that the

petitioner has been making the repayment and maintaining the

loan account initially. The default in repayment occurred lately

due to reasons beyond the control of the petitioner. The

petitioner has provided substantial security which will

safeguard the interest of the Bank.

10. Taking into consideration the facts of the case, I am

of the view that the petitioner can be granted an opportunity to

settle the loan through One Time Settlement.

In the facts of the case, the writ petition is disposed of

with a direction that if the petitioner makes a payment of Rs.5

lakhs and makes a concrete application for One Time

Settlement of the loan account showing the proposed WP(C) NO. 6078 OF 2024 ..6..

settlement amount of the One Time Settlement and the

timeline required for settlement, then the Bank shall take

appropriate decision thereon, soon thereafter. If the petitioner

makes payment of Rs.5 lakhs and submits a One Time

Settlement proposal as directed above, confirmation of the

sale shall stand deferred till the Bank takes a decision. If the

petitioner is not remitting the amount or if the petitioner is not

submitting a proposal for One Time Settlement, the

respondent will be at liberty to proceed with the sale.

Sd/-

N.NAGARESH, JUDGE

AS WP(C) NO. 6078 OF 2024 ..7..

APPENDIX OF WP(C) 6078/2024

PETITIONER'S EXHIBITS:

EXHIBIT-P1 A TRUE COPY OF THE SALE NOTICE DATED 17-01-2024 ISSUED BY THE RESPONDENT TO THE PETITIONER