High Court Kerala High Court

Sri. Jomon John vs Vijaya Bank Represented By Its on 24 September, 2008

Kerala High Court
Sri. Jomon John vs Vijaya Bank Represented By Its on 24 September, 2008
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

WP(C).No. 20150 of 2008(W)


1. SRI. JOMON JOHN, RESIDING AT JEES
                      ...  Petitioner

                        Vs



1. VIJAYA BANK REPRESENTED BY ITS
                       ...       Respondent

2. THE REGIONAL MANAGER,

                For Petitioner  :SRI.S.SANAL KUMAR

                For Respondent  :SRI.K.ANAND,SC, VIJAYA BANK

The Hon'ble MR. Justice THOTTATHIL B.RADHAKRISHNAN

 Dated :24/09/2008

 O R D E R
          THOTTATHIL B. RADHAKRISHNAN, J.
       -----------------------------------------------------------------------
                 W.P.(C) NO.20150 OF 2008 (W)
       -----------------------------------------------------------------------
           Dated this the 24th day of October, 2008

                             J U D G M E N T

This writ petition is filed challenging action taken by the

first respondent bank by moving an application under Section 14

of the SARFAESI Act, in short the “Act”, before the Chief Judicial

Magistrate. The predominant ground or grounds raised in the writ

petition related to a question as to whether the Chief Judicial

Magistrate is a Metropolitan Magistrate for the purpose of

Section 14 of the Act. That issue stands answered against the

interest of the petitioner by the Division Bench of this Court in

W.A No.1817/2008. Bereft of that, the only plea is that the

petitioner had been making prompt remittances and there was

default from September, 2007 owing to failure of the appropriate

financial flow in his business. That by itself is no ground, apart

from the fact that no material is really on record to show the total

failure of the business. Another plea is that the reply of the

petitioner was answered by the bank by giving a single line reply

W.P.(C) No.20150/2008

– 2 –

in the form of Ext.P4. In that context, I may refer to Ext.P3

where the request is for allowing him to continue the MLHL

facility and to shift the C.C. Limit of the petitioner to a new firm

which he has started. He wants the bank to grant him an

additional home improvement loan and has requested the bank

to re-schedule the facility in such a manner that the total EMI

will come to Rs.43,500/, which he states, would be a “cake-walk”

for him. These are matters, which are, essentially, no reply to the

action taken under Section 13(2) of the Act or the issue raised

thereby, but only a plea to the commercial wisdom of the bank. If

the bank has not acceded to that request of the petitioner, it is

not within the domain of this Court to enter into any adjudication

on that issue. The aforesaid scenario discloses that there is no

jurisdictional error or legal infirmity in the impugned

proceedings. It is a matter of record that the petitioner had not

paid the amount of Rupees two lakhs, to sustain the interim

order even on enlargement of time being granted.

Having regard to the totality of the facts and circumstances and

taking into consideration of the entire amount involved in the

W.P.(C) No.20150/2008

– 3 –

recovery proceedings and having heard the learned counsel for

the parties, it is ordered that the petitioner will be given a last

opportunity by permitting him to pay off the entire outstandings

in five equal instalments, payable on or before the 10th of every

month, commencing from October 2008 including all accruals.

To aid such process, it is directed that if the petitioner pays the

amount as aforesaid, the dispossession through the process of

Section 14 of the Act shall stand deferred. However, if there is

any default in remitting any of the instalments as afore-directed

the distress action will be immediately enforced and the

petitioner dispossessed accordingly, without any further notice.

Sd/-

THOTTATHIL B. RADHAKRISHNAN,
JUDGE

skr/24/9

// True copy //

P.A. to Judge.