B.K. Gopakumar v. Federal Bank Ltd. and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT** **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN** **MONDAY ,THE 14TH DAY OF JANUARY 2019 / 24TH POUSHA, 1940** # **WP(C).No. 403 of 2019** ## **PETITIONER/S:** **B.K.GOPAKUMAR, AGED 50 YEARS SWARALAYA, ERAM MIDDLE, CHATHANNOOR.P.O., KOLLAM-691572.** **BY ADV. SRI.B.SURESH KUMAR** ## **RESPONDENT/S:** - **1 THE FEDERAL BANK, REPRESENTED BY ITS MANAGER, CHATHANNOOR.P.O., KOLLAM-691572.** - **2 THE AUTHORISED OFFICER (ASSISTANT VICE PRESIDENT), FEDERAL BANK LTD., LCRD/SATALLITE DIVISION, FIRST FLOOR, PADINJARETHALACKAL CHERIAN CHAMBERS, PUTHIYAKAVU, MAVELIKKARA--690101.** - **3 THE NORKA, (DEPARTMENT OF NON-RESIDENT KERALITES AFFAIRS), REPRESENTED BY ADDITIONAL CHIEF SECRETARY NORKA (A) DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001.** - **4 THE UNION OF INDIA, REPRESENTED BY ITS SECRETARY TO THE MINISTRY OF EXTERNAL AFFAIRS, SOUTH BLOCK, RAISINA HILLS, NEW DELHI-110011.** **BY ADVS. SMT.SREEKALA K.L., CGC SRI.A.ANTONY-SC, SMT.AMMINIKUTTY-SR.GP** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 14.01.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WPC 403/2019 2 ## **JUDGMENT** The petitioner says that he is a hapless victim of a fraud committed on him while he was working in the Kingdom of Saudi Arabia by a group of persons and he says that he had to be, consequentially, repatriated to India with the assistance of the Government of India and that he is, therefore, in a state of penury. He, however, says that he is expecting compensation and damages from the Kingdom of Saudi Arabia and that he would thereupon be in a position to pay off all his debts, including the loan that he had availed of from the respondent-Federal Bank. 2. The petitioner's limited prayer in this case is that he be allowed to pay off the entire liability due to the respondent Bank in seven months time and he says that he is confident of doing so on account of the fact the Government of India is also assisting him in obtaining such compensation. He has thus arrayed the competent WPC 403/2019 3 Authorities of the Government of India also in the party array of this writ petition to show that the reliefs prayed for in this writ petition is valid and that his intentions are only to settle the loan liability without any further delay. 3. The learned Standing Counsel for the Bank submits that the total liability due from the petitioner comes to Rs.18,96,666/- as on 10.01.2019 and he very fairly submits that the Bank does not intend to deracinate or prejudice him in any manner and that they only want to recover the said amount at the earliest point of time. He offers that if the petitioner pays some amount, out of the above mentioned total outstanding, on or before 31.03.2019, he can be allowed another two or three months time to pay off the balance in monthly instalments. 4. Sri. B. Sureshkumar, the learned counsel for the petitioner, submits that his client has WPC 403/2019 4 no other option than to accept this offer and he says that his client will pay Rs.3 lakhs on or before 31.03.2019 and the balance of the outstanding, along with all applicable charges and interest, by the end of July 2019. 5. The learned Standing Counsel for the Bank does not oppose this but he prays that the initial payment be increased to at least Rs.4 lakhs. However, Sri. B. Suresh Kumar submits that his client is not in a position to pay anything more than Rs.3 lakhs at this time and he reiterates that he has arrayed the competent Authority of the Government of India on the party array to establish that his client's fiscal situation is extremely pitiable and that he is presently surviving only on account of the indulgence shown to him by the said Government and its agencies. On hearing this, the learned Standing Counsel for the Bank says that the petitioner then pay Rs.3 lakhs as agreed by him WPC 403/2019 5 before 31.03.2019 and the balance by the end of July 2019. 6. In the afore circumstances, I am of the view that the offer and the counter offer made by the parties, as recorded above, are very reasonable in the given circumstance; and I, therefore, deem it appropriate to allow the petitioner to clear off the entire loan liability in the manner I will order presently. 7. When I say so, I am not oblivious to the fact that the challenge made by the petitioner to the measures taken by the Bank under the SARFAESI Act cannot be considered by this Court on account of the binding precedents of the Hon'ble Supreme Court in **Union Bank of India v. Satyawati Tondon** ((2010) 8 SCC 110) and followed recently in **Authorised Officer, SBT v. Mathew** (ILR 2018 (1) Ker. 479) and therefore, that I will not be justified in granting any such reliefs. I consequently can only offer the petitioner the WPC 403/2019 6 limited indulgence of being allowed to pay off the loan liability in the manner afore narrated. 8. The learned counsel for the petitioner at this time submits that his client is, for the time being, giving up all his contentions against the measures taken by the Bank under the SARFAESI Act and therefore, that this writ petition be ordered permitting him to pay off the liability as per the offer of the Bank. In the above circumstances, I order this writ petition and direct the petitioner to pay an amount of Rs.3 lakhs on or before 31.03.2019 and if such payment is done, then the Bank will permit him time till the end of July, 2019 to pay off the entire balance outstanding, along with all applicable charges and interest, in equal monthly instalments commencing from 26.04.2019. It goes without saying that if there is any default in making the payments as directed above, the benefit granted under this judgment would WPC 403/2019 7 stand vacated and the Bank will be at liberty to recover the entire liability from the petitioner by continuing with the proceedings from the stage it is on this date. The writ petition is ordered accordingly. ## **SD/-** ## **DEVAN RAMACHANDRAN** ## **JUDGE** RR WPC 403/2019 8 ## APPENDIX PETITIONER'S/S EXHIBITS: EXHIBIT P1 A TRUE COPY OF THE LETTER DATED 20.12.2016 ISSUED TO THE FEDERAL BANK LTD., CHATHANNOOR BY THE ASSISTANT DISTRICT INDUSTRIES OFFICER, KOLLAM. EXHIBIT P2 A TRUE COPY OF THE NOTICE DATED 7.9.2018 ISSUED TO THE PETITIONER UNDER SECTION 13(2) OF THE SARFAESI ACT. EXHIBIT P3 A TRUE COPY OF THE POSSESSION NOTICE DATED 15.12.2018 ISSUED TO THE PETITIONER UNDER SECTION 13(12) OF THE SARFAESI ACT.