IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 36483 of 2009(E)
1. MR.MOHIND G.SAMUEL,
... Petitioner
2. MRS. SUSY MOHIND,
Vs
1. INDIAN OVERSEAS BANK,
... Respondent
2. AUTHORIZED OFFICER,
For Petitioner :SRI.PRADEESH CHACKO
For Respondent :SRI.P.B.SURESH KUMAR
The Hon'ble MR. Justice P.R.RAMACHANDRA MENON
Dated :27/01/2010
O R D E R
P.R. RAMACHANDRA MENON, J
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W.P.(C) No.36483 of 2009
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Dated this the 27th day of January, 2010
J U D G M E N T
The petitioner has approached this Court challenging
the steps taken by the respondent bank for realisation of the
amount due from the petitioner invoking the provisions
under the SARFAESI Act. The case of the petitioner is that
the default was not wilful or due to any deliberate
negligence, but for some unforeseen circumstances in view
the sudden down fall in the business. Despite the adverse
circumstances, it is stated that the petitioner has taken
earnest efforts to clear the entire liability and accordingly,
various payments have been effected to the different loans
at different points of time and also in compliance with the
directions issued by this Court, while intercepting the
coercive steps as per the interim orders.
2. The first respondent had filed a statement, stating
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that the amount paid by the petitioner at different points of
time have been given credit to and the appropriation has
been made as against the liability under different loan
transactions. It is also brought to the notice of this Court
that, besides the three ‘housing loans’ availed by the
petitioner, there were three ‘business loans’ as well and
that the proceedings were being pursued by the bank for
realisation of the amount due under all these loan
transactions.
3. The learned counsel for the first respondent
submits with reference to the contents of the statement
that, after giving credit to the amount paid under the
various loan transactions, a sum of about Rs.15.50 lakhs is
outstanding under the ‘housing loans’, while a further sum
of about Rs.10.80 lakhs is outstanding under the ‘business
loan accounts’ as on 31/12/2009. It is further stated that, by
virtue of the payments effected by the petitioner, the ‘over
due’ amount in the housing loan accounts has been
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liquidated. It is however added in paragraph 6 that the
regularisation of the ‘business loan’ cannot be considered as
the petitioner does not have any business as on date and
further that the regularisation of the ‘housing loan’ can be
considered, once the petitioner clears the entire
outstanding amount in the business loans completely.
4. After considering the facts and circumstances and
in view of the admitted fact that the entire ‘over due’
amounts under the ‘housing loans’ have been satisfied by
the petitioner, the further stipulation made by the
respondent to clear the business loans first, as a pre-
condition to have the ‘housing loans’ regularised, does not
appear to be correct or proper. True, the loan facility
provided by the bank to the petitioner is on the basis of a
specific contract. However, the respondent bank, which is
very much in the public sector, cannot impose unreasonable
restrictions; particularly with regard to the liability of the
persons concerned under the ‘housing sector’; which is
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being provided and implemented also in support of the
policy of the Government to promote such welfare
measures.
5. In the above circumstances, the ‘over due’ amount
under the ‘housing loan accounts’ having been admittedly
cleared by the petitioner, the respondent bank is directed to
regularise the ‘housing loan’ accounts forthwith.
6. With regard to the liability of the petitioner under
the three ‘business loans’, the outstanding amount is only
about Rs.10.80 lakhs, with further interest and costs from
1/1/2010. After hearing both the sides, this Court permits
the petitioner to clear the said liability by way of ‘3’ equal
instalments, the first of which shall be effected on or before
the 25th February 2010 and the remaining 2 instalments
shall be effected on or before the 25th of the succeeding
months. Subject to the above, the recovery proceedings by
the respondent bank shall be kept in abeyance for the time
being. It is made clear that, if any default is made in
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clearing the liability as above, towards the ‘business loans’
or if any 2 consecutive defaults are made with regard to the
regular EMIs to be paid under the ‘housing loans’, the
respondent bank will be at liberty to proceed with further
steps for realisation of the entire amount in a lump sum, by
pursuing such steps from the stage where it stands now.
The writ petition is disposed of as above.
P.R. RAMACHANDRA MENON
(JUDGE)
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