Biju Joseph v. Kaduthuruthy Urban Co-operative Bank Ltd

## `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ## `THE HONOURABLE MR.JUSTICE C.S.DIAS` ``` WEDNESDAY, THE 19[TH] DAY OF JULY 2023 / 28TH ASHADHA, 1945 ``` ## `WP(C) NO. 23190 OF 2023` ## `PETITIONER:` ``` MR. BIJU JOSEPH, AGED 54 YEARS S/O IYPE VARGHESE, NILAPPANA HOUSE, VALACHIRA, KADUTHURUTHY P.O, KOTTAYAM, KERALA-, PIN - 686604 BY ADVS. E.A.BIJUMON MALAVIKA MARY THOMAS MEGHA BIJU ``` ## `RESPONDENT:` ``` KADUTHURUTHY URBAN CO-OPERATIVE BANK LTD NO.K.399, HEAD OFFICE KADUTHURUTHY PERUVA, KOTTAYAM, KERALA, PIN - 686610 REPRESENTED BY ITS AUTHORIZED OFFICER. BY ADV VARGHESE C.KURIAKOSE ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON ``` ``` 19.07.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` WPC No.23190 of 2023 ``` ``` 2 ``` ## C.S.DIAS, J. `-------------------------` W.P.(C.) No.23190 of 2023 `-------------------------` Dated this the 19[th] day of July, 2023 ## JUDGMENT The writ petition is filed, inter alia, to set aside the entire proceedings initiated by the respondent as against the property of the petitioner until such time the petitioner approaches the Debt Recovery Tribunal. 2. The petitioner's case is that, he had availed two loans from the respondent Bank. The petitioner is a farmer. The petitioner had never failed to repay instalments towards the loan account. However, due to Covid-19 pandemic and unprecedented floods in the year 2018, the petitioner was prevented from paying the instalments on time. The Bank has now ``` WPC No.23190 of 2023 ``` ``` 3 ``` initiated proceedings under the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act (in short, ‘Act’) and has issued Ext.P1 demand notice. The Bank has never considered the payments made by the petitioner or given any information regarding the loan account. The demand made in Ext.P1 is illegal. The Advocate Commissioner has issued Ext.P2 notice threatening to take physical possession of the secured asset. The Bank is acting with ulterior motives and against the provisions of the Act. The petitioner is ready to pay the admitted amount. But, the petitioner is not in a position to pay such enormous amount in a lumpsum as directed by the bank. The Bank is not prepared to hear the conditions of the petitioner. The mortgaged property was obtained the a will by petitioner through ``` WPC No.23190 of 2023 ``` ``` 4 ``` executed by his father, wherein his mother and elder sister have been bequeathed with shares. His elder sister is aged 67 and is a psychiatric patient. The Bank has no right to proceed against the said property. Hence, the entire proceedings leading to Exts.P1 and P2 may be quashed. 3. The respondent has filed a counter affidavit refuting the allegations in the writ petition. The respondent has contended that the petitioner is taking a circuitous route to stall the recovery proceedings. The petitioner has not made out any cause of action. The complete details leading to the loan transaction have been narrated in detail in the counter affidavit. The petitioner and his mother were the principal borrowers and his father was the guarantor, who had deposited the title deeds of ``` WPC No.23190 of 2023 ``` ``` 5 ``` the secured asset. The petitioner has not paid a single rupee towards the repayment of the loan. Then, the respondent filed M.C. No.226/2023 before the jurisdictional Magistrate and an Advocate Commissioner was appointed, who issued Ext.P2 notice. It is settled law that this Court may not normally interfere in matters of the present nature. There is no bonafides on the part of the petitioner. The writ petition is meritless and maybe dismissed. 4. Heard; Sri. Bijumon E.A., the learned Counsel appearing for the petitioner and Sri.Varghese C. Kuriakose, the learned Counsel appearing for the respondent. 5. Ext.P1 demand notice was issued on 06.07.2022, to the petitioner and all the legal heirs of the guarantor - petitioner’s father. The petitioner did not move his little finger to ``` WPC No.23190 of 2023 ``` ``` 6 ``` initiate proceedings as against Ext.P1. It is now after Ext.P2 notice has been issued by the Advocate Commissioner on 30.06.2023, the petitioner has preferred the present writ petition for deferring further proceedings until such time the petitioner approaches the Debt Recovery Tribunal. 6. The Hon’ble Supreme Court in South Indian Bank Ltd vs. Naveen Mathew Philip (2023 LiveLaw (SC) 320) , after adverting to a myriad of earlier judicial pronouncements rendered under the Act, has categorically declared that High Courts shall not, unless in extra ordinary circumstances, interfere with proceedings initiated under the Act, in writ proceedings under Article 226 of the Constitution of India. 7. Having considered the pleadings and ``` WPC No.23190 of 2023 ``` ``` 7 ``` materials on record, and the rival submissions made across the Bar and the law laid down by the Hon'ble Supreme Court, I do not find any extraordinary circumstances to entertain the writ petition by exercising the plenary powers of this Court under Article 226 of the Constitution of India. Nonetheless, it will be upto the petitioner to work out his statutory remedies, in accordance with law. 8. Taking a lenient view in the matter and to provide the petitioner a breathing time to approach the Tribunal, I am of the view that the further recovery proceedings, pursuant to Exts.P1 and P2, can be directed to be deferred for a period of ten days, which will render complete justice to both sides. Resultantly, the writ petition is dismissed, without prejudice to the right of the petitioner ``` WPC No.23190 of 2023 ``` ``` 8 ``` to work out his statutory remedies, in accordance with law. In order to facilitate the petitioner to work out his remedies, the respondent is directed to defer further coercive proceedings as against the secured asset by a period of ten days from the date of uploading of a copy of this judgment. Sd/C. S. DIAS JUDGE SKP/19-07 ``` WPC No.23190 of 2023 ``` ``` 9 ``` ## `APPENDIX OF WP(C) 23190/2023` ``` PETITIONER’S EXHIBITS: EXHIBIT P1TRUE COPY OF THE DEMAND NOTICE DATED 06.07.2022. EXHIBIT P2TRUE COPY OF THE NOTICE DATED 30.06.2023 ISSUED BY THE ADVOCATE COMMISSIONER. EXHIBIT P3TRUE COPY OF THE WILL DEED NO.85/2008. RESPONDENT’S EXHIBITS: EXHIBIT R1 (A)TRUE PHOTOSTAT COPY OF 13(2) NOTICE DATED 06.07.2022 PERTAINING TO THE LOAN OF RS.6 LAKHS TRUE COPY ``` ``` P.A. TO JUDGE ```