G. Thankarajan v. Indian Overseas Bank

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN** **THURSDAY, THE 06TH DAY OF JUNE 2019 / 16TH JYAISHTA, 1941** **WP(C).No. 15083 of 2019** ## **PETITIONER/S:** **G.THANKARAJAN, AGED 64 YEARS RESIDING AT RETHY BHAVAN, AYANIMOODU, VEDIVACHANCOIL P.O., PALLICHAL VILLAGE, PALLICHAL DESOM, NEYYATTINKARA TALUK, TRIVANDRUM DISTRICT, KERALA STATE.** **BY ADVS. SRI.M.RAMASWAMY PILLAI SRI.K.RAJESH KANNAN** ## **RESPONDENT/S:** **1 INDIAN OVERSEAS BANK, ARALUMOODU BRANCH, NEYYATTINKARA TALUK, REPRESENTED BY ITS BRANCH MANAGER- 695121. 2 THE AUTHORIZED OFFICER, INDIAN OVERSEAS BANK, ARALUMOODU BRANCH, NEYYATTINKARA TALUK, TRIVANDRUM DISTRICT- 695121. BY ADV. SRI.SUNIL SHANKER-SC** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 06.06.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WPC 15083/19 2 ## **JUDGMENT** The petitioner assails certain proceedings initiated and being pursued by the respondent Bank under the provisions of the Securitisation and Reconstruction of Financial Assets and Enforcement of Securities Interest Act ('the SARFAESI Act' for brevity). 2. I have heard the learned counsel for the petitioner and the learned counsel for the respondent Bank. 3. When I deal with this writ petition, I am conscious that I am jurisdictionally proscribed from entering into any enquiry or consideration of the legality or otherwise of the orders impugned in this writ petition on account of the imperative statutory provisions and the binding judicial pronouncements, especially that of the Hon'ble Supreme Court in **Union Bank of India v. Satyawati Tondon [(2010)** **8 SCC 110]** and in **Authorised Officer, State Bank of Travancore and Another v. Mathew K.C.** WPC 15083/19 3 **[2018 (1) KLT 784]** . I, therefore, cannot and do not propose to consider any of the legal contentions raised by the petitioner on its merits. 4. However, obviously being aware of this, the learned counsel appearing for the petitioner has prayed that notwithstanding the limitations of jurisdiction as aforementioned, the petitioner may be granted some leniency or latitude in order to enable him to pay off the total outstanding amounts in installments. 5. I, therefore, enquired with the learned counsel for the Bank as to whether the request on the part of the petitioner can be allowed, especially on account of the fact that the Banks are only interested in recovering and not in maintaining and keep pending litigations and legal proceedings against such recovery. The learned counsel has fairly submitted that the Bank is concerned about recovery at the earliest and that if the petitioner pays off the total dues quickly, it would be to their WPC 15083/19 4 interest also. 6. In view of the fact that the proceedings initiated by the Bank would consume time to culminate in total recovery and taking into account the financial constraints and burden that have been alleged and pleaded by the petitioner, I am inclined to dispose of this writ petition allowing him an opportunity to pay off the entire amounts demanded by the Bank. 7. The learned counsel for the Bank at this time submits that the petitioner can be allowed to pay off the total outstanding, which is stated to be **Rs.17,05,377/-** as on 01.05.2019, along with other charges and interest, in not more than ten instalments commencing from 30.06.2019. 8. The learned counsel for the petitioner says that the petitioner is agreeable to the above offer made by the Bank and therefore, that the writ petition may be ordered granting permission to the petitioner to pay off the WPC 15083/19 5 amount in the manner as afore. 9. In such circumstances, I direct the petitioner to pay off the aforementioned amount in **ten** equal monthly instalments commencing from **30.06.2019** , along with applicable charges and interest. It goes without saying that if there is any default in making the payment as directed above, the benefit granted under this judgment would 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. 10. I make it clear that the directions in this judgment are peremptory in nature and that the petitioner will have to comply with the same meticulously. I caution the petitioner that no further requests for extension or modification of this judgment, save in exceptional circumstances, will be permitted and that if the petitioner fails to comply with the directions herein, he will lose the benefit of this judgment. WPC 15083/19 6 11. After I dictated this judgment, the learned counsel for the petitioner submitted that the secured asset has already been taken possession of by the respondent-Bank and he, therefore, prays that the Bank be directed to restore it to him on payment of a few instalments. 12. Sri.Sunil Shanker, the learned Standing Counsel for the respondent-Bank, submits that this Court may not issue any such direction, since the Bank is willing to restore the possession only after the petitioner makes the full payment as ordered above; particularly because the petitioner has not complied with Ext.P1 judgment obtained by him earlier from this Court. 13. Taking note of the submissions of the petitioner that the secured asset is a residential property and he has no other place to live in, though I do not deem it proper to make any affirmative directions; I leave liberty to the petitioner to approach the Bank WPC 15083/19 7 appropriately for this purpose, after a minimum of three instalments are paid by him and I consequentially leave it to the Bank to take a decision thereon as per law. The writ petition is ordered accordingly. **Sd/-** **DEVAN RAMACHANDRAN** RR **JUDGE** WPC 15083/19 8 ## APPENDIX PETITIONER'S/S EXHIBITS: EXHIBIT P1 TRUE COPY OF JUDGMENT DATED 31.05.2018 IN W.P.(C)NO.17743/2018 OF THIS HONOURABLE COURT. EXHIBIT P2 THE COPY OF WARRANT AUTHORIZING COMMISSIONER TO TAKE POSSESSION OF PROPERTY U/SEC. 14 OF THE SARFAESI ACT, 2002. EXHIBIT P3 THE PHOTOCOPY OF THE NOTICE DATED 15.05.2019 ISSUED BY THE ADVOCATE COMMISSIONER TO THE PETITIONER.