Kerala High Court
Nassar vs Authorised Officer/Assistant General ... on 29 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 29TH DAY OF FEBRUARY 2024 / 10TH PHALGUNA, 1945
WP(C) NO. 30093 OF 2023
PETITIONER:
NASSAR,
AGED 47 YEARS
S/O HUSSAIN, KARUVARAKUNNIL (H)
IRIMBILIYAM P.O, MECHERI PARAMBU
MALAPPURAM - 679572
BY ADV L.RAJESH NARAYAN
RESPONDENTS:
1 AUTHORISED OFFICER/ASSISTANT GENERAL MANAGER,
THE PONNANI CO-OPERATIVE URBAN BANK LTD NO.M.372
HEAD OFFICE, C.V JUNCTION, PONNANI,
MALAPPURAM - 679577
2 BRANCH MANAGER,
THE PONNANI CO-OPERATIVE URBAN BANK LTD NO.M.372
VALIYAKUNNU BRANCH, PONNANI, MALAPPURAM,
PIN - 679577
BY ADV SHOBY K.FRANCIS
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON 29.02.2024, ALONG WITH WP(C).2614/2024 AND CONNECTED
CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C) Nos.30093 and 41383 of 2023 and 2614 of 2024
2
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE N.NAGARESH
THURSDAY, THE 29TH DAY OF FEBRUARY 2024/10TH PHALGUNA, 1945
WP(C) NO. 41383 OF 2023
PETITIONER:
NASSAR
AGED 47 YEARS
S/O HUSSAIN, KARUVARAKUNNIL (H) IRIMBILIYAM P.O,
MECHERI PARAMBU MALAPPURAM, PIN - 679572
BY ADV L.RAJESH NARAYAN
RESPONDENTS:
1 AUTHORISED OFFICER/ASSISTANT GENERAL MANAGER
THE PONNANI CO-OPERATIVE URBAN BANK LTD NO.M.372
HEAD OFFICE, C.V JUNCTION, PONNANI
MALAPPURAM, PIN - 679577
2 BRANCH MANAGER
THE PONNANI CO-OPERATIVE URBAN BANK LTD
NO.M.372 VALIYAKUNNU BRANCH, PONNANI,
MALAPPURAM, PIN - 679577
BY ADVS.
SHOBY K.FRANCIS
AGI SHOBY(A-768)
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 29.02.2024, ALONG WITH WP(C).2614/2024 AND
CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
WP(C) Nos.30093 and 41383 of 2023 and 2614 of 2024
3
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE N.NAGARESH
THURSDAY, THE 29TH DAY OF FEBRUARY 2024/10TH PHALGUNA, 1945
WP(C) NO. 2614 OF 2024
PETITIONER:
SALEEM P
AGED 58 YEARS
S/O MUHAMMAD, PULIKKALAKATHU (H)
CHANKUVETTIKUNDU, KOTTAKKAL
MALAPPURAM, PIN - 676503
BY ADV L.RAJESH NARAYAN
RESPONDENTS:
1 AUTHORISED OFFICER/ASSISTANT GENERAL MANAGER
THE PONNANI CO-OPERATIVE URBAN BANK LTD
NO.M.372 HEAD OFFICE, C.V JUNCTION,
PONNANI, MALAPPURAM, PIN - 679577
2 BRANCH MANAGER
THE PONNANI CO-OPERATIVE URBAN BANK LTD
NO.M.372 VALIYAKUNNU BRANCH, PONNANI,
MALAPPURAM, PIN - 679577
BY ADVS.
SHOBY K.FRANCIS
AGI SHOBY(A-768)
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 29.02.2024, ALONG WITH WPC NOS.30093/2023,
41383/2023, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
WP(C) Nos.30093 and 41383 of 2023 and 2614 of 2024
4
JUDGMENT
Dated this the 29th day of February, 2024
[WP(C) Nos.30093 and 41383 of 2023 and 2614 of 2024]
The petitioner in W.P.(C) Nos.30093 and 41383 of 2023
had availed a loan from the Ponnani Co-operative Urban Bank
Limited in the year 2018 of an amount of ₹52 lakhs, to be
repaid in 96 monthly installments. The loan is secured by
mortgage of 4 items of properties totaling 84.06 Cents.
2. The petitioner states that he was prompt in
repayment of loans and was effecting repayments in a regular
manner. Substantial payments were made in discharge of the
liability. The statement of accounts with respect to the loans
would reveal the fact that substantial repayments have been
made to the account. The petitioner was never issued with any
notice from the Bank regarding initiation of any proceedings for
recovery.
WP(C) Nos.30093 and 41383 of 2023 and 2614 of 2024
3. The petitioner was taken aback on receipt of a notice
from the respondents intimating that they are proceeding with
further steps for recovery. Consequently, the petitioner
approached the Bank and expressed his willingness to
regularize the loan account after effecting payment of the
outstanding amounts, but the same was not acceded to.
4. The petitioner therefore approached this Court filing
W.P.(C) No.30093 of 2023 and this Court granted an interim
order deferring the proceedings initiated under the SARFAESI
Act against the petitioner on conditions. The petitioner could
not raise sufficient amounts to comply with the interim order of
this Court and sought for extension of time. In the meanwhile,
the Advocate Commissioner appointed by the Chief Judicial
Magistrate's Court, Manjeri came to take possession of the
mortgaged property. The Advocate Commissioner along with
the officials of the Bank took two cheques from the petitioner,
which is arbitrary and illegal.
WP(C) Nos.30093 and 41383 of 2023 and 2614 of 2024
5. The petitioner submits that he is not a chronic
defaulter and substantial repayments have been made to the
loan accounts. The petitioner states that he is ready and willing
to clear the outstanding amounts in instalments and to get the
loans regularised. Seeking direction to the respondents to
reschedule the loan accounts of the petitioner and to regularise
the loan accounts, after accepting the overdue amounts in
instalments, the petitioner again filed W.P.(C) No.41383 of
2023.
6. The petitioner in W.P.(C) No.2614 of 2024 has
availed a loan from the Ponnani Co-operative Urban Bank
Limited. The petitioner has approached this Court seeking
direction to the respondents not to proceed against the property
of the petitioner covered by Ext.P1, for realisation of amounts
due from the borrowers to whom Ext.P3 notice has been
issued. The borrower had already approached this Court filing
W.P.(C) Nos.30093 and 41383 of 2023.
WP(C) Nos.30093 and 41383 of 2023 and 2614 of 2024
7. The petitioner states that he has availed the loan by
mortgaging a property having 21.85 cents. The petitioner was
prompt in repayment of the amounts and was effecting
payments in a regular manner. The petitioner was taken aback
on receipt of notice from the respondents under Section 13(2) of
the Securitisation and Reconstruction of Financial Assets and
Enforcement of Security Interest Act, 2002.
8. The petitioner states that the property which was
purchased by the petitioner as per Ext.P1 was never offered as
a security for the loan with respect to which Ext.P3 notice
pertains. In fact, the petitioner has availed a separate loan and
the same cannot be clubbed with that of the principal borrower
to whom Ext.P3 notice has been issued. The loans are
separate and distinct and the petitioner's property cannot be
proceeded against for realization of amounts due from them.
9. It is therefore necessary that appropriate directions
be issued to the Bank to permit the petitioner to conduct private
sale of the property of the petitioner and not to proceed against
WP(C) Nos.30093 and 41383 of 2023 and 2614 of 2024
the same for realisation of the amounts due from the borrower
to whom Ext.P3 notice has been issued.
10. The petitioner submitted that the attempt of the Bank
for taking coercive action against the property of the petitioner
without issuing any notice is illegal and arbitrary. The
respondents have no authority to proceed against the property
of the petitioner as the same has not been offered as security
for any loan other than one taken by the petitioner. The action
of the respondents has forced the petitioner to approach this
Court.
11. Standing Counsel representing the Bank in
W.P.(C) No.30093 of 2023 submitted that there was no
substantial repayment of loan amount and the loan account
became NPA from 29.06.2018. In spite of request made by the
Bank, the petitioner did not take any steps to maintain the loan
account. Therefore, a demand notice under the SARFAESI Act
was issued. As on 25.10.2023, the total amount outstanding in
the loan account of the petitioner is ₹12,72,557/- and the
WP(C) Nos.30093 and 41383 of 2023 and 2614 of 2024
overdue amount is ₹10,80,866/-. The petitioner has not paid
₹2 lakhs as directed by this Court in the interim order dated
06.10.2023.
12. The respondents filed counter affidavit in W.P.(C)
No.41383/2023 also. The loan account became NPA on
27.09.2019. Symbolic possession of the property was taken on
04.03.2021. Total outstanding amount in the Cash Credit
facility as on 07.12.2023 is ₹95,14,850/-. Now, the total liability
as on 07.12.2023 is ₹1,98,02,239/-. There is no question of
restructuring of the loan amount now.
13. I have heard the learned counsel for the petitioner
and the learned Standing Counsel representing the
respondents.
14. In W.P.(C) No.30093/2023, the petitioner seeks to
command the respondents to defer further coercive
proceedings pursuant to Ext.P3. Ext.P3 is a notice for sale
issued under Rule 8 of the Security Interests (Enforcement)
WP(C) Nos.30093 and 41383 of 2023 and 2614 of 2024
Rules. What is under challenge in W.P.(C) No.41283/2023 is
Ext.P4 proceedings, which is a notice issued by the Advocate
Commissioner pursuant to an order passed by the Chief
Judicial Magistrate, Manjeri under Section 14 of the SARFAESI
Act. In W.P.(C) No.2614/2024, the petitioner challenges
proceedings of the Bank proposed against the property covered
by Ext.P1 deed, under the SARFAESI Act.
15. It is evident that in all the three writ petitions, the
petitioners are challenging proceedings initiated under the
SARFAESI Act. As the petitioners have an effective alternate
remedy against those proceedings under Section 17 of the
SARFAESI Act, I am not inclined to grant any relief to the
petitioners in these writ petitions. At this stage, the petitioners
sought leave of this Court to approach the Bank for One Time
Settlement of the loan accounts. If the Bank has a Scheme for
One Time Settlement, there cannot be any objection for the
Bank to consider the request of the petitioners for One Time
Settlement.
WP(C) Nos.30093 and 41383 of 2023 and 2614 of 2024
In the facts and circumstances, the writ petitions are
disposed of permitting the petitioners to approach the Bank for
a One Time Settlement of the loan account.
Sd/-
N.NAGARESH
JUDGE
spk
WP(C) Nos.30093 and 41383 of 2023 and 2614 of 2024
APPENDIX OF WP(C) 30093/2023
PETITIONER EXHIBITS
Exhibit P1 TRUE COPY OF THE STATEMENT OF ACCOUNTS
WITH RESPECT TO THE LOAN ACCOUNT OF THE
PETITIONER
Exhibit P2 TRUE COPY OF THE NOTICE ISSUED BY THE
RESPONDENT DATED 29.1.2021 UNDER
S.13(2) OF THE ACT
Exhibit P3 TRUE COPY OF THE NOTICE DATED 19.8.2023
NO. SARFAESI/2/VKU/ML-568/2019-20
WP(C) Nos.30093 and 41383 of 2023 and 2614 of 2024
APPENDIX OF WP(C) 41383/2023
PETITIONER EXHIBITS
Exhibit P1 TRUE COPY OF THE NOTICE ISSUED BY THE
RESPONDENT DATED 29.1.2021 UNDER
S.13(2) OF THE ACT
Exhibit P2 TRUE COPY OF THE NOTICE DATED 19.8.2023
NO. SARFAESI/2/VKU/ML-568/2019-20
Exhibit P3 TRUE COPY OF THE INTERIM ORDER DATED
19.10.2023 IN WPC NO.30093/2023
Exhibit P4 TRUE COPY OF THE NOTICE ISSUED BY THE
ADVOCATE COMMISSIONER DATED 2.11.2023
IN MC NO.509/2023 OF CJM COURT, MANJERI
Exhibit P5 TRUE COPY OF THE CHEQUES DATED
20.11.2023
Exhibit P6 TRUE COPY OF THE STATEMENT FILED BY THE
RESPONDENT IN WPC NO.30093/2023 DATED
8.11.2023
RESPONDENT EXHIBITS
EXHIBIT R (1)A A TRUE COPY OF THE NOTICE ISSUED BY THE
BANK UNDER SEC.13(4) OF THE SARFAESI
ACT, 2002 TO THE PETITIONER
EXHIBIT R (1)B A TRUE COPY OF THE NOTICE ISSUED BY THE
ADVOCATE COMMISSIONER DATED 19-9-2023
IN M C NO. 509/2023 TO THE PETITIONER
EXHIBIT R (1)C A TRUE COPY OF THE NOTICE ISSUED BY THE
ADVOCATE COMMISSIONER DATED 2-11-2023
IN MC NO. 509/2023 TO THE PETITIONER
EXHIBIT R(1) D A TRUE COPY OF THE RECEIPT ISSUED BY
ASSISTANT GENERAL MANAGER OF THIS
RESPONDENT BANK DATED 27-2-2023
PRODUCED BEFORE THE CJM COURT, MANJERI
EXHIBIT R(1) E A TRUE COPY OF THE ORDER IN M C NO.
101/2023 PASSED BY THE CJM COURT,
MANJERI DATED 31-3-2023
EXHIBIT R(1) F A TRUE COPY OF THE ORDER DATED 14-9-
2023 PASSED BY THIS HON'BLE COURT IN WP
WP(C) Nos.30093 and 41383 of 2023 and 2614 of 2024
APPENDIX OF WP(C) 2614/2024
PETITIONER EXHIBITS
Exhibit P1 TRUE COPY OF THE SALE DEED NO.4245/2015
DATED 7.12.2015 OF VALANCHERY SRO
Exhibit P2 TRUE COPY OF THE BASIC TAX RECEIPT
DATED 29.6.2019
Exhibit P3 TRUE COPY OF THE NOTICE ISSUED BY THE
RESPONDENT DATED 29.1.2021 UNDER
S.13(2) OF THE ACT
Exhibit P4 TRUE COPY OF THE NOTICE DATED 19.8.2023
NO. SARFAESI/2/VKU/ML-568/2019-20
Exhibit P5 TRUE COPY OF THE INTERIM ORDER DATED
19.10.2023 IN WPC NO.30093/2023
Exhibit P6 TRUE COPY OF THE NOTICE ISSUED BY THE
ADVOCATE COMMISSIONER DATED 2.11.2023
IN MC NO.509/2023 OF CJM COURT, MANJERI
