IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 4864 of 2010(U)
1. SMT. HALEEMA R., W/O.HASSANAR,
... Petitioner
Vs
1. THE SOUTH INDIAN BANK LIMITED.,
... Respondent
2. THE DEBT RECOVERY TRIBUNAL,
For Petitioner :SRI.K.B.PRADEEP
For Respondent :SRI.GEORGE VARGHESE (MANACHIRACKEL)
The Hon'ble MR. Justice P.R.RAMACHANDRA MENON
Dated :17/02/2010
O R D E R
P.R. RAMACHANDRA MENON, J.
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W.P(C) No. 4864 OF 2010
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Dated this the 17th February, 2010
J U D G M E N T
The petitioner had availed a cash credit facility to the tune
of Rs. One crore form the State Bank of Travancore in the year
2004 and thereafter, another housing loan of Rs. 30 lakhs from
the first respondent Bank. In furtherance to the negotiations in
between the parties, the cash credit facility was taken over by
the first respondent Bank and the petitioner was effecting
repayments under both the loans together. However in the
course of time, the petitioner turned to be a defaulter, under
which circumstance, the first respondent proceeded with coercive
steps under the SARFAESI Act, which was sought to be
intercepted by filing W.P.(C) No.9707 of 2007, mainly contending
that the Bank was not right in declaring the account of the
petitioner as ‘NPA’ in view of non-satisfaction of the requirement
as contemplated under section 31(j) of the Act , which stipulates
that the amount due should be a minimum of 20% of the
principal amount and interest thereon.
2. The above Writ Petition was disposed of by this Court,
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declining interference, referring to the alternate remedy
available to the petitioner. Accordingly, the petitioner filed
S.A.No. 35 of 2007 before the DRT and moved an interlocutory
application for stay. Since the application for stay was not
considered by the Tribunal, the petitioner again approached this
Court by filing W.P(C)No.17332 of 2007, which was disposed of,
directing the DRT to consider and pass appropriate orders on the
petition for stay as well as the appeal, making it clear that the
petitioner shall not be dispossessed from the house till
29.06.2007.
3. Pursuant to the above verdict, the DRT considered the
appeal and an order was passed on 28.06.2007 holding that the
appeal preferred by the petitioner was quite ‘premature’ in view
of the law declared by the Apex Court in Mardia Chermicals
Limited vs. Union of India (2004 (4) SCC 311) and also
based on the endorsement stated as made by the learned
counsel appearing for the petitioner that the SA could be
dismissed in he above circumstances. It was thereafter, the
petitioner chose to approach this Court again by filing W.P.(C)
No.20203 of 2007 raising many a ground, also disowning the
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correctness and justifiability of the endorsement stated as made
by the then Counsel in the SA. After considering the matter at
length, the above Writ Petition was dismissed as per Ext. P3
judgment dated 20.07.2009, observing that the petitioner, if
aggrieved in any manner, was at liberty to approach the
statutory authority by filing appropriate proceedings in this
regard. So as to enable the petitioner to pursue such remedy,
the coercive steps stated as being pursued were intercepted, on
condition that the petitioner deposited a sum of Rs. One lakh
within the time specified therein.
4. It appears from the proceedings filed before this Court
that the petitioner has approached the DRT by filing S.A.No.
377 of 2009, wherein Ext. P4 order was passed on 01.10.2009
directing to maintain ‘status quo’. Subsequently, the said order
was varied as per Ext.P5 dated 26.11.2009, directing the
petitioner to deposit a sum of Rs. ‘Thirty Five lakhs’ on or before
31.12.2009.
5. Admittedly, the petitioner did not satisfy the said
condition imposed by the DRT. In the meanwhile, because of
non-compliance of the direction in Ext. P5, the respondent Bank
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had proceeded with further steps, by moving the concerned
C.J.M. under Section 14(1) of the Act, which led to Ext. P6 order
directing to take delivery of the property on 18.02.2010 and to
report compliance on the next day.
6. The petitioner is aggrieved of Ext. P6 order since he has
already filed Ext.P8 representation before the DRT seeking for
further extension of time . Taking note of the sequence of
events, this Court does not find any merit or bonafides in the
course and conduct being pursued by the petitioner, which
cannot but be deprecated in the strongest possible words .
7. However, the learned Counsel for the respondent Bank
submits that even at this extent of time, the Bank, as a gesture
of goodwill, is ready and willing to provide one week’s time to
the petitioner to satisfy the condition imposed vide Ext.P5
order and on satisfying the said requirement, taking note of the
specific assurance made by the petitioner in the Writ Petition as
well as in Ext. P8 representation filed before the Tribunal that the
entire liability will be wiped out before 31.03.2010, further
proceedings could be caused to be kept in abeyance till such
time.
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8. In the above facts and circumstances, the petitioner is
permitted to satisfy the condition imposed by the DRT vide Ext.
P5, depositing a sum of Rs. Thirty Five lakhs within one week
from today. On satisfying the said requirement, all further
proceedings, including those pursuant to Ext. P6, shall be kept
in abeyance till 31.03.2010 , subject to the condition that the
entire outstanding liability under the loan transaction is cleared
by the petitioner on or before 31.03.2010. It is made clear that
if the petitioner does not honour the commitment as above , i.e.,
if there is any failure to satisfy Rs. ‘Thirty Five lakhs’ within one
week or the balance amount on or before 31.03.2010, the
respondents will be at liberty to proceed with further steps for
realisation of the entire amount in a lump sum, from the stage
where it stands now.
The Writ Petition is disposed of as above.
P.R. RAMACHANDRA MENON,
JUDGE.
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