Kerala High Court
Cholamandalam Investment And Finance ... vs Niyas Khan on 23 January, 2025
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W.A.No.1705 of 2024 1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR. NITIN JAMDAR
&
THE HONOURABLE MR. JUSTICE S.MANU
THURSDAY, THE 23RD DAY OF JANUARY 2025 / 3RD MAGHA, 1946
WA NO. 1705 OF 2024
AGAINST THE JUDGMENT DATED 06.09.2024 IN
WP(C) NO.23192 OF 2024 OF HIGH COURT OF KERALA
APPELLANTS/APPELLANTS/REVIEW PETITIONERS/RESPONDENTS:
1 CHOLAMANDALAM INVESTMENT AND FINANCE COMPANY LTD,
HAVING REGISTERED OFFICE AT DARE HOUSE, 2 NSC
BOSE ROAD, PARRYS, CHENNAI, AND BRANCH OFFICE AT
2ND FLOOR, RAJA COMMERCIAL COMPLEX, OPPOSITE
AKSHARA OFFSET PRINTERS, THIRUVANANTHAPURAM
DISTRICT. REPRESENTED BY ITS AREA CREDIT MANAGER
AND AUTHORIZED OFFICER, PIN - 600001
2 AREA CREDIT MANAGER AND AUTHORIZED OFFICER,
CHOLAMANDALAM INVESTMENT AND FINANCE COMPANY LTD,
HAVING REGISTERED OFFICE AT DARE HOUSE, 2 NSC
BOSE ROAD, PARRYS, CHENNAI, AND BRANCH OFFICE AT
2ND FLOOR, RAJA COMMERCIAL COMPLEX, OPPOSITE
AKSHARA OFFSET PRINTERS, THIRUVANANTHAPURAM
DISTRICT, PIN - 600001
BY ADVS.
AADITHYAN S.MANNALI
PARVATHY KOTTOL
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W.A.No.1705 of 2024 2
RESPONDENT/RESPONDENT/PETITIONER:
NIYAS KHAN,
AGED 47 YEARS
S/O A.KABEER, FLAT NO.15, PADNABHAM HOMES,
KALADY, SOUTH, THIRUVANANTHAPURAM DISTRICT,
PIN - 695002.
BY ADV.
SRI.K.SHAJ
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON
23.01.2025, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
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W.A.No.1705 of 2024 3
NITIN JAMDAR, C.J.
&
S.MANU, J.
--------------------------------------------------
W.A.No.1705 of 2024
-------------------------------------------------
Dated this the 23rd day of January, 2025
JUDGMENT
S.MANU, J.
Appellant Finance Company is aggrieved by the judgment passed
in W.P.(C)No.23192/2024 by the learned Single Judge on 6 September
2024. Though a review petition was filed as R.P.No.1000/2024 by the
Appellant, the same was disposed with some clarifications by judgment
dated 30 September 2024 by the learned Single Judge.
2. The Respondent availed a commercial loan from the Appellant
by creating equitable mortgage of 3.50 Ares of property owned by him.
When the repayment was defaulted, Appellant initiated proceedings
under the SARFAESI Act. The Respondent approached this Court in
W.P.(C)No.15543/2024. Learned Single Judge of this Court disposed
the said writ petition on 27 May 2024 directing the Respondent to
remit the overdue amount in 4 equal and consecutive monthly
installments along with accruing interest and other administrative
charges if any. It was clarified that in case of default coercive
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proceedings can be continued. Further it was directed that the
Respondent shall also pay current EMIs along with the installments.
Liberty was granted to the Respondent to approach the Appellant for
repossession of the secured asset after clearing the outstanding arrears.
Coercive proceedings were directed to be deferred, if the Respondent
pays the installments as directed.
3. According to the Appellant, Respondent remitted only the
overdue amount and not the accrued interest and administrative
charges to the tune of ₹1,13,532/-. In W.P.(C)No.23192/2024
Respondent mainly prayed for direction to the Appellant to return the
possession of the secured asset claiming that the loan account of the
Respondent has been regularized. Learned Single Judge disposed the
writ petition directing the Appellant to restore possession of the
secured asset forthwith. Respondent was directed to discharge the
liability in terms of the loan agreement. It was clarified that in the
event of any future default by the Respondent, the Appellant shall be
free to take possession of the secured asset. In paragraph 3 of the
judgment the learned Single Judge recorded that the Counsel who
appeared for the Appellant had submitted that the Appellant had no
objection in handing over possession of the secured asset.
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4. Appellant thereafter filed R.P.No.1000/2024 stating that the
Counsel had no instruction for agreeing to handover possession of the
secured asset to the Respondent. The learned Single Judge disposed
the Review Petition noting that the interest of the Appellant was well
secured in the judgment in the writ petition.
5. Before us, learned counsel for the Appellant Company
Ms.Parvathy Kottol submitted that the writ petition was an abuse of the
process of court and the learned Single Judge ought not to have
entertained the same. She contended that the dispute is over a financial
transaction with the Appellant Company for which effective alternative
remedy was available to the Respondent under the SARFAESI Act. The
learned counsel disputed the contention of the Respondent that the
entire outstanding amounts were paid. According to the learned
counsel, an amount of ₹1,13,532/- still remains due which includes
costs and other administrative charges. The learned counsel, citing the
judgment of the Hon'ble Supreme Court in Celir LLP v. Bafna Motors
(Mumbai) Pvt. Ltd. and others1, contended that the right of
redemption available to the Respondent stands already extinguished.
She therefore prayed that the impugned judgment may be set aside and
the writ petition be dismissed.
1[AIR 2023 SC 4568]
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6. Per contra, Mr.K.Shaj, the learned counsel for the Respondent
contended that his client had complied with the directions issued by
the learned Single Judge in W.P.(C)No.15543/2024 and therefore the
Appellant was bound to restore possession of the secured asset. He
pointed out that the judgment in W.P.(C)No.15543/2024 was accepted
by the Appellant Company also. He, referring to the averments in the
counter affidavit filed in this appeal submitted that the contention of
the Appellant Company that amounts towards costs, administrative
charges, etc. are outstanding is incorrect. The learned counsel argued
that the Appellant Company is pursuing the matter in this appeal
without any bonafides and none of the grounds urged in the writ
appeal are with any merits.
7. We find that there is serious dispute between the Appellant and
the Respondent regarding the amounts allegedly outstanding. Such a
dispute is essentially factual in nature which is normally not within the
purview of adjudication in a writ petition. It is also to be noted that the
dispute arises out of proceedings initiated by the Appellant Company
under the provisions of the SARFAESI Act. In South Indian Bank v.
Abdulla Kulukkampara2 relevant precedents of the Hon'ble Supreme
Court were referred and it was clarified that settled position of law is
that interference in writ proceedings in matters under the SARFAESI
2 2024 SCC OnLine Ker 7015
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Act is not permissible when the remedy of approaching the DRT is
available to the aggrieved. We are therefore of the view that the remedy
available under the SARFAESI Act shall be invoked by the Respondent
in case he has any genuine grievances. It is always open to the
Respondent to approach the Appellant Company also for settlement. In
view of the legal position clarified in the judgment referred above, the
impugned judgment cannot be sustained. We therefore allow this
appeal by setting aside the impugned judgment. Needless to say, the
judgment passed by the learned Single Judge in the Review Petition
also would stand set aside. Writ Petition would stand dismissed.
However, it will be open to the Respondent to approach the DRT.
8. The writ appeal is disposed of as above.
Sd/-
NITIN JAMDAR
CHIEF JUSTICE
Sd/-
S.MANU
JUDGE
skj
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APPELLANTS' ANNEXURES
Annexure A A TRUE COPY OF THE WRIT PETITION
(CIVIL) NO. 15543 OF 2024 FILED BY THE
RESPONDENT
Annexure B A TRUE COPY OF THE REVIEW PETITION NO.
1000/2024 FILED BY THE APPELLANTS
BEFORE THE LEARNED SINGLE JUDGE
Annexure C A TRUE COPY OF THE JUDGMENT DATED
Annexure D A TRUE COPY OF THE ORDER ISSUED BY THE
LEARNED SINGLE JUDGE ON 14.10.2024 IN
THE CONTEMPT CASE (C) 2657/2024
Annexure E A TRUE COPY OF THE E-SALE NOTICE FOR
THE SECURED ASSET DATED 24.01.2024
Annexure F A TRUE COPY OF THE LOAN AGREEMENT DATED
31-12-2020
Annexure G A TRUE COPY OF THE LOAN AGREEMENT DATED
21-10-2022 BETWEEN THE APPELLANTS AND
RESPONDENT
Annexure H A TRUE COPY OF FEW PHOTOGRAPHS SHOWING
THE NATURE OF THE PROPERTY AT THE TIME
OF GIVING THE LOAN AND AT PRESENT
RESPONDENT'S ANNEXURES
ANNEXURE R1 A The true copy of the receipt dated
15/04/2024 issued by the office of the
appellants
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ANNEXURE R1 B The true copy of the extracts of the
messages sent by the appellants to the
respondent on various dates for the
payment of instalments and amounts due.
ANNEXURE R1 C The true copy of the notice published
by the appellants in their website.
ANNEXURE R1 D The true copy of the Notification No.
RBI/2021-2022/125 dated 12/11/2021
issued by Reserve Bank of India.
