Kerala High Court
Porukandi Smitha vs Cholamandalam Investment And Finance ... on 31 May, 2024
Author: N.Nagaresh
Bench: N.Nagaresh
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE N.NAGARESH
FRIDAY, THE 31ST DAY OF MAY 2024 / 10TH JYAISHTA, 1946
WP(C) NO. 19660 OF 2024
PETITIONERS:
1 PORUKANDI SMITHA
AGED 47 YEARS, W/O.ARAVINDAKSHAN
MURAKKALI, 87/11, MAMBRAM LAP PATHIRYAD,
THALASSERY, KANNUR DISTRICT (SHANTHAM,
KANHIRAD, THILLENKERI.P.O, KANNUR),
PIN - 670702.
2 ARAVINDAKSHAN MURAKKALI
AGED 57 YEARS, S/O.CHATHUKUTTY, 87/11,
MAMBARAM LAP PATHIRAYAD, THALASSERY,
KANNUR DISTRICT, PIN - 670622.
BY ADVS.
N.ASHOK KUMAR
ARJUN S.KURUPP
RESPONDENTS:
1 CHOLAMANDALAM INVESTMENT AND FINANCE
COMPANY LTD.
CHOLA CREST, C54-55 & SUPER B-4,
THIRU-VIA-KA INDUSTRIAL ESTATE,GUINDY,
CHENNAI, REPRESENTED BY ITS EXECUTIVE AND
LEGAL RECOVERY MANAGER, PIN - 600032.
2 AUTHORISED OFFICER (EXECUTIVE AND LEGAL
RECOVERY MANAGER)
CHOLAMANDALAM INVESTMENT AND FINANCE COMPANY
LTD.,OFFICE AT DARE HOUSE, NO.2,
N.S.C.BOSE ROAD, PARYS,
CHENNAI, PIN - 600001.
W.P.(C)No.19660 of 2024
:2:
BY ADVS.
PHILIP T.VARGHESE
THOMAS T.VARGHESE
ACHU SUBHA ABRAHAM
V.T.LITHA
K.R.MONISHA
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 31.05.2024, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
W.P.(C)No.19660 of 2024
:3:
JUDGMENT
Dated this the 31st day of May, 2024
The petitioners have approached this Court aggrieved by
the coercive proceedings for recovery of financial advance
made by the Cholamandalam Investment and Finance
Company Limited to the petitioners, invoking the provisions of
the Securitisation and Reconstruction of Financial Assets and
Enforcement of Security Interest Act, 2002.
2. The respondents paid ₹18,96,501/- to the
petitioners as Housing Loan in the year 2021. 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. It happened due to
reasons beyond the control of the petitioners.
3. Though the petitioners requested the respondents
to permit the petitioners to repay the overdue amounts in easy
monthly instalments, the respondents 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 respondents are 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 respondents and denied all the statements made by the
petitioners. On behalf of the respondents, it is submitted that
the loan was given to the petitioners in the year 2021. The
petitioners committed default in repaying the loan. The
possession of the property was taken on 08.05.2024.
6. The respondents repeatedly reminded the
petitioners and required them to clear the dues. The
petitioners deliberately omitted to do so. In the circumstances,
the respondents 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 respondents.
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 respondents
from the petitioners is ₹21,06,494/- and the overdue amount is
₹3,09,253/-.
8. I have heard the counsel for the petitioners and the
Standing Counsel representing the respondents.
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 respondents.
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
₹2 lakhs within a period of one month from
today.
(ii) The petitioners shall remit the balance
overdue amount within a further period of
one month along with accruing interest and
other administrative 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 make payments as
directed above, coercive proceedings, if any,
against the petitioners shall stand deferred.
(vi) When the petitioners clear the overdue
amount, the respondents shall give back the
possession of the property to the petitioners.
Sd/-
N. NAGARESH
JUDGE
ams
APPENDIX OF WP(C) 19660/2024
PETITIONER EXHIBITS
Exhibit P1 TRUE COPY OF THE POSSESSION NOTICE
DATED 10.05.2024 ISSUED BY THE
RESPONDENTS TO THE PETITIONERS
Exhibit P2 TRUE COPY OF THE RECEIPT DATED
27.02.2024 ISSUED BY THE RESPONDENTS
TO THE PETITIONERS
Exhibit P3 TRUE COPY OF THE RECEIPT DATED
11.03.2024 ISSUED BY THE RESPONDENTS
TO THE PETITIONERS
Exhibit P4 TRUE COPY OF THE NOTICE DATED
23.01.2023 IN ARBITRATION PROCEEDINGS
NO.CIFL/ARB/L-LXV/3556 ISSUED BY THE
SOLE ARBITRATOR MR.G.DHARMARAJ TO THE
PETITIONERS
Exhibit P5 TRUE COPY OF THE NOTICE DATED
25.08.2023 IN E.P.NO.179/2023 OF THE
DISTRICT COURT, THALASSERY.
