The Branch Manager vs Sanooja Rafeek
2024 Latest Caselaw 32889 Ker

Kerala High Court

The Branch Manager vs Sanooja Rafeek on 13 November, 2024

                                                    2024:KER:86484

            IN THE HIGH COURT OF KERALA AT ERNAKULAM
                              PRESENT
        THE HONOURABLE THE CHIEF JUSTICE MR. NITIN JAMDAR
                                 &
                THE HONOURABLE MR. JUSTICE S.MANU
WEDNESDAY, THE 13TH DAY OF NOVEMBER 2024 / 22ND KARTHIKA, 1946
                       WA NO. 1795 OF 2024
        AGAINST THE JUDGMENT DATED 22.10.2024 IN WP(C) NO.37040
                 OF 2024 OF HIGH COURT OF KERALA

APPELLANTS/RESPONDENTS IN WPC:

    1      THE BRANCH MANAGER
           SUNDARAM HOME FINANCE LIMITED, KAYAMKULAM BRANCH,
           SECOND FLOOR, CENTER POINT, NEAR POST OFFICE,
           K.P.ROAD, KAYAMKULAM, KAYAMKULAM P.O, ALAPPUZHA
           DISTRICT, PIN - 690 502
    2      THE REGIONAL OFFICER (AUTHORIZED OFFICER)
           SUNDARAM HOME FINANCE LIMITED, SUNDARAM TOWERS,
           (21 PATULLOS ROAD) 46 , WHITES ROAD, CHENNAI,
           TAMIL NADU, PIN - 600 014

           BY ADV VINO JOSE
RESPONDENTS/PETITIONERS IN WPC:

    1      SANOOJA RAFEEK
           AGED 41 YEARS, W/O. RAFEEK, KONICHIRA HOUSE,
           POOCHAKKAL, PANAVALLI VILLAGE, POOCHAKKAL . P.O,
           CHERTHALA THALUK, ALAPPUZHA DISTRICT,, PIN - 688 526
    2      RAFEEK
           AGED 46 YEARS, S/O YUSUFF, KONICHIRA HOUSE,
           POOCHAKKAL, PANAVALLI VILLAGE, POOCHAKKAL . P.O,
           CHERTHALA THALUK, ALAPPUZHA DISTRICT,, PIN - 688 526

           SRI P V DILEEP


THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 13.11.2024,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
                                                         2024:KER:86484
W.A.No.1795 of 2024
                                       2

                                JUDGMENT

Dated this the 13th day of November, 2024

Nitin Jamdar, C.J.

Heard Mr. Vino Jose, learned counsel for the Appellants and Mr. P.V. Dileep, learned counsel for the Respondents.

2. The Respondents/Borrowers had availed a loan of ₹20 lakhs which was sanctioned by the Appellants. The term of the repayment obligated the Respondents to pay ₹35,078/- every month for 10 years. The Respondents had also mortgaged immovable property. The loan tenure expired. However, the Respondents did not pay the loan amount.

3. The Appellants initiated measures under Section 13(2) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI Act) and moved the Chief Judicial Magistrate under Section 14 of the SARFAESI Act. The Magistrate appointed an Advocate Commissioner and accordingly the Commissioner went to take possession on 19 October 2024. Thereafter the Respondents filed W.P.(C)No.37040 of 2024.

4. The learned Single Judge by judgment dated 22 October 2024 entertained the writ petition and directed that the amount be paid by way of instalments. The Appellants, being aggrieved by the interference in writ jurisdiction, filed this appeal.

5. We agree with the learned counsel for the Appellants that the law in 2024:KER:86484

this regard is settled by the Hon'ble Supreme Court in several decisions. The legal position has been summarised in the recent decision of the Supreme Court in PHR Invent Educational Society v. UCO Bank and Others (AIR 2024 SC 1893). The above dicta is clear and binding.

6. In light thereof, according to us, the interference in writ jurisdiction was not warranted. The remedy of the Respondents lies in approaching the Debt Recovery Tribunal (DRT).

7. The appeal is accordingly allowed. The impugned judgment dated 22 October 2024 in W.P.(C)No.37040 of 2024 is quashed and set aside.

8. As regards the payment of instalments as ordered by the learned Single Judge is concerned, it is for the Appellants to accept the same or to refuse as per the commercial prudence of the Bank.

9. If the Respondents approach the DRT, the proceedings will be decided on their own merits and all contentions are kept open.

Sd/-

Nitin Jamdar Chief Justice

Sd/-

S. Manu Judge vpv 2024:KER:86484

PETITIONER ANNEXURES

Annexure 1 A TRUE COPY OF THE UNDERTAKING DATED 19.10.2024 ISSUED BY THE 2ND RESPONDENT TO THE ADVOCATE COMMISSIONER ALONG WITH ITS ENGLISH TRANSLATION