Lal Prasad v. The Authorized Officer, Canara Bank

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN** **WEDNESDAY,THE 30TH DAY OF JANUARY 2019 / 10TH MAGHA, 1940** ## **WP(C).No. 2587 of 2019** ## **PETITIONER:** **LAL PRASAD AGED 45 YEARS (PROPRIETOR OF M/S. BAIRISH IMPEX), AVITTOM, S.N.NAGAR, MANACADU P.O., BYE PASS, KAMALESWARAM, THIRUVANANTHAPURAM-695 009.** **BY ADV. SMT.LIZA P.CHERIAN** ## **RESPONDENT:** ## **THE AUTHORIZED OFFICER** **CANARA BANK, VAZHUTHACAUD BRANCH, IST FLOOR, LEXMI CHAMBERS, GANAPATIKOVIL ROAD, VAZHUTHACAUD, THIRUVANANTHAPURAM-695 014.** **BY ADVS.** **SMT.G.LEKHA SMT.P.J.FLONY SMT.S.AMBILY SMT.UMA.G.KRISHNAN SRI.K.S.DILIP SRI.SAJU N.A.** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 30.01.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No. 2587 of 2019** **2** ## **J U D G M E N T** Through this writ petition, the petitioner calls into question 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. As I proceed to consider the reliefs prayed for by the petitioner herein, 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 followed recently in **Authorised** **WP(C).No. 2587 of 2019** **3** **Officer, SBT v. Mathew** (ILR 2018 (1) Ker. 479). 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 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 dues quickly, it would be to their interest also. **WP(C).No. 2587 of 2019** **4** 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 amounts demanded by the Bank. 7. The learned counsel for the Bank at this time submits that there are three loan accounts; being an overdraft, an MSME loan and a Housing Loan and that an amount of Rs.7,24,800/- is due in the overdraft; while Rs.1,20,479/- and Rs.1,00,000/- are overdue in the MSME and Housing Loan respectively. She says that if the petitioner pays the overdue amounts in the MSME and Housing Loans on or before 28.03.2019, the bank will permit the petitioner to pay off the total outstanding in the O.D account aforementioned in nine monthly instalments. She however, adds that since this indulgence is being shown to the petitioner by the Bank singularly on the request made before **WP(C).No. 2587 of 2019** **5** this Court, in the event he defaults in making payment in this manner, he may be directed to hand over vacant possession of the secured asset, because the bank has now scheduled the take over of physical possession of the same on 02.02.2019. 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 amount in the manner as afore. 9. In such circumstances, I direct the petitioner to pay an amount of Rs.2,20,479/- being the total overdues in the MSME and Housing Loans, along with all applicable charges and interest, if any, on or before 28.03.2019; in which event, the Bank will permit him to pay off the total outstanding of Rs.7,24,800/-, as on today in the overdraft account along with all applicable charges and interest, in nine equal monthly instalments commencing from 02.05.2019. He shall also, in addition to this, pay the regular EMIs without fail in respect of the MSME loan account and Housing Loan **WP(C).No. 2587 of 2019** **6** account. If such payment is made by the petitioner, his loan account would stand regularised and he would then be at liberty to service the account as per the terms of the loan sanction. 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 further order that if the petitioner fails or defaults in making payment as ordered above, he would be obligated to hand over physical possession of the secured asset, by surrendering its keys to the Bank on the very next day after the first default is committed, so that the Bank can then proceed further under the SARFAESI Act. I caution the petitioner that since this indulgence is being shown to him under the mandate of Article 226 of the Constitution of India, any default on his part to hand over the keys, in the event, he is unable to make payment as ordered above, will visit him **WP(C).No. 2587 of 2019** **7** with all consequences under the Contempt of Court Act to its fullest warrant. The writ petition is ordered accordingly. **Sd/-** **DEVAN RAMACHANDRAN JUDGE** rp **WP(C).No. 2587 of 2019** **8** ## **APPENDIX** **PETITIONER'S/S EXHIBITS: EXHIBIT P1 THE TRUE COPY OF THE DEMAND NOTICE DATED 2.8.18. EXHIBIT P2 THE TRUE COPY OF THE REPRESENTATION. EXHIBIT P3 THE TRUE COPY OF THE ADVOCATE COMMISSIONERS NOTICE DATED 09.1.2019.**