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.
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W.P.(C) NO.20150 OF 2008 (W)
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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
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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.