S.Thanu Pillai vs Union Of India on 17 February, 2009

       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

WP(C).No. 4366 of 2009(T)


1. S.THANU PILLAI,
                      ...  Petitioner
2. GOMATHY AMMAL,

                        Vs



1. UNION OF INDIA, REP. BY SECRETARY,
                       ...       Respondent

2. THE AUTHORISED OFFICER,

3. CANARA BANK, CHALAI BRANCH,

                For Petitioner  :SRI.M.RAMASWAMY PILLAI

                For Respondent  :SRI.P.PARAMESWARAN NAIR,ASST.SOLICITOR

The Hon'ble MR. Justice THOTTATHIL B.RADHAKRISHNAN

 Dated :17/02/2009

 O R D E R
               THOTTATHIL B RADHAKRISHNAN, J
                      ...........................................
                   WP(C).NO. 4366                   OF 2009
                     ............................................
     DATED THIS THE             17 TH DAY OF FEBRUARY, 2009

                                 JUDGMENT

Petitioners have come to this court on receipt of Ext.P4 notice

under Section 13(2) of SARFAESI Act. First petitioner is the son of

second petitioner, an aged widow. It appears that a residential

building is covered by the mortgage and second petitioner stays there.

The only request that is made is that some time frame may be fixed

and granted to enable the petitioners to pay off the outstandings. To

demonstrate bonafides, the petitioners have placed on record, Ext.P1

in terms of which, it is stated that dues to another bank has also been

settled. Petitioners stated that they would sell off yet another item of

property or otherwise generate funds and pay off the outstandings

without much delay. Advised by the ratio of the decision of Apex Court

in Mardia Chemicals V. Union of India(2004(4) SCC 311),

petitioners do not have any right to challenge the notice issued under

Section 13(2). All that they have, is an opportunity to object to that

notice and explain their stand to preclude further action under

Section 13(4). If a measure is taken under Section 13(4), it is for

petitioners to move the Debt Recovery Tribunal under Section 17 of

SARFAESI Act. As if now, this is a fit case where the petitioners move

the bank itself, following Ext.P4, for a negotiable settlement of the

WP(C) 4366/2009 2

entire outstandings. It is stated that petitioners have met the

General Manager and has made certain requests. The banking sector

can necessarily modulate the total outstandings by recourse to

appropriate understanding that could be arrived at, taking into

consideration the totality of the transactions and viability impact

issues. Therefore without issuing any restraint orders against further

proceedings under SARFAESI Act, this writ petition is ordered

directing that if the petitioners remit an amount of Rs.3,00,000/- on or

before 5.3.2009, third respondent, through the competent authority,

will consider the request of petitioners for a time frame to pay off the

outstandings.

Writ petition ordered accordingly.

THOTTATHIL B RADHAKRISHNAN,
JUDGE

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