N.K. Anitha v. Federal Bank Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE N.NAGARESH** **FRIDAY, THE 11[TH] DAY OF MARCH 2022 / 20TH PHALGUNA, 1943** **WP(C) NO. 5078 OF 2022** ## **PETITIONER:** **N.K.ANITHA, AGED 50 YEARS W/O. RAJAN, NANAMKANDI PARAMBIL HOUSE, KARAYANTHANKAVU P., VIA BALUSSERY, KOZHIKODE-673632.** **BY ADVS. SANTHAN V.NAIR CHRISTEENA P GEORGE** ## **RESPONDENTS:** - **1 THE FEDERAL BANK LTD., QUILANDY BRANCH, REPRESENTED BY ITS BRANCH MANAGER, PANTHALAYANI AMSOM DESOM, KOYILANDY TALUK, KOZHIKODE DISTRICT-673632.** - **2 THE ZONAL MANAGER, FEDERAL BANK LIMITED, ZONAL OFFICE, ARAYIDAH PALAM, KOZHIKODE-673004.** **BY ADVS.** **MOHAN JACOB GEORGE NIGI GEORGE P.V.PARVATHY (P-41) REENA THOMAS** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 11.03.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P.(C) No.5078/2022 : 2 : ## **N. NAGARESH, J.** ````````````````````````````````````````````````````````````` ## W.P.(C) No.5078 of 2022 ````````````````````````````````````````````````````````````` _Dated this the 11[th] day of March, 2022_ ## **J U D G M E N T** ~ ~ ~ ~ ~ ~ ~ ~ ~ The petitioner has approached this Court seeking to direct the respondents to consider and pass appropriate orders on Ext.P3 representation within a stipulated time period after affording an opportunity of being heard to the petitioner as per Ext.P2 judgment. 2. The petitioner states that her husband took a loan from the 1[st] respondent-Bank. The loan amount was ₹4,30,000/- and it was availed on 20.10.2004. The loan was to be repaid in 180 monthly instalments of ₹5,435/-. The 1[st] respondent-Bank filed OS No.128 of 2009 in Sub Court for W.P.(C) No.5078/2022 : 3 : recovery of the said amount. The said Suit was decreed ex-parte and the 1[st] respondent-Bank was permitted to realise ₹7,15,556/- with interest at the rate of 14.25%. 3. The petitioner states that she was not aware of the said judgment and decree. The relationship between the petitioner and her husband was strained during this time. She came to know about the decree only when notice in EP No.105 of 2013 was served. Though the petitioner engaged a Lawyer to set aside the ex-parte judgment and decree, the EP was proceeded with and the property was put for sale. As there were no purchasers, the Bank took the property in auction, for the execution amount. The petitioner approached this Court through various cases subsequently and as per the directions of this Court, the petitioner has deposited ₹7,20,000/- to the loan account of the 1[st] respondent-Bank so far. 4. After receiving the entire amount decreed from the petitioner, the respondents are now trying to evict the petitioner from the property. The petitioner filed OP (Civil) W.P.(C) No.5078/2022 : 4 : No.144 of 2022 before this Court. This Court ordered that if the petitioner is having any intention to re-convey the property after paying the due towards the Bank, the petitioner can opt for the said remedy as part of conciliation between the decree holder and the second judgment debtor by way of negotiation. The petitioner therefore submitted Ext.P3 representation dated 10.02.2022 to the 2[nd] respondent for settlement of the issue. The respondents have not taken any decision so far. 5. The learned counsel for the petitioner submitted that the decretal amount is ₹7,15,566/- and the petitioner has so far remitted ₹7,20,000/-. In such circumstances, if the petitioner is evicted from the property, the petitioner has nowhere to go and the petitioner along with her daughter will be pushed to the streets. 6. The respondents entered appearance and contested the writ petition. The learned Standing Counsel for the respondents submitted that a writ petition is not maintainable in the matter in view of the judgments of the W.P.(C) No.5078/2022 : 5 : Hon'ble Apex Court in _**Federal Bank Limited v. Sagar Thomas** [2003 (3) KLT 876]_ and in _**Phoenix ARC Private Limited v. Vishwa Bharati Vidya Mandir and others** [AIR 2022 SC 1045]_ . The learned counsel for the petitioner pointed out that the same issue was agitated before this Court in OP (Civil) No.144 of 2022 and hence this Court need not entertain the writ petition. 7. After having heard the learned counsel for the petitioner and the learned Standing Counsel representing the respondents, this Court is of the view that the respondents, in the interest of justice, are bound to consider Ext.P3 representation submitted by the petitioner. The petitioner had earlier approached this Court filing OP (Civil) No.144 of 2022. While dismissing the said OP (Civil), this Court observed that if the petitioner is having any intention to re-convey the property after paying the due towards the Bank, she can opt for the same as part of conciliation between decree holder and the second judgment debtor by way of negotiation. W.P.(C) No.5078/2022 : 6 : 8. The fact remains that the property of the petitioner is being proceeded against to satisfy Ext.P1 decree under which the 1[st] respondent-Bank is entitled to recover an amount of ₹7,15,556/- along with interest from the petitioner. After passing of the judgment and decree, the petitioner has remitted so far ₹7,20,000/-. The petitioner has remitted the said amount on the fond hope that the respondents will abstain from proceeding against the property. The respondents accepted the payments made by the petitioner. In the facts and circumstances of the case, this Court is of the considered view that the respondent should consider Ext.P3 representation submitted by the petitioner and try to arrive at an amicable settlement through conciliation or negotiation, in view of Ext.P2 judgment. The writ petition is accordingly disposed of directing the 2[nd] respondent to consider Ext.P3 representation submitted by the petitioner and strive to arrive at an amicable settlement in the matter resorting to conciliation or mutual negotiation. A decision on Ext.P3 W.P.(C) No.5078/2022 : 7 : representation shall be taken within a period of one month, unless of course, the conciliation/negotiation requires a longer period. Sd/- **N. NAGARESH, JUDGE** aks/10.03.2022 W.P.(C) No.5078/2022 : 8 : ## **APPENDIX OF WP(C) 5078/2022** ## **PETITIONER'S EXHIBITS** **Exhibit P1 THE TRUE COPY OF THE JUDGMENT AND DECREE DATED 31/05/2010 ON THE FILES OF SUB COURT, KOYILANDY. Exhibit P2 TRUE COPY OF ORDER DATED 21/01/2022 PASSED IN OP(CIVIL) NO. 144/2022 OF HIGH COURT OF KERALA. Exhibit P3 TRUE COPY OF THE REPRESENTATION DATED 10/02/2022 SUBMITTED BEFORE THE RESPONDENT BANK. Exhibit P4 TRUE COPY OF THE AFFIDAVIT SIGNED BY THE PETITIONER DATED 28/02/2022.** ## **RESPONDENT'S EXTS** **R1(a) COY OF OPC NO.144/22. R1(b) COPY OF REGISTERED SALE CERTIFICATE DT 17.10.2013 R1(c) COPY OF JUDGMENT DT 16.7.2014 IN OP.1612/14. R1(d) COPY OF JUDGMENT IN RP.896/16. R1(e) COPY OF ORDER IN SLP.10127/2015 R1(f) COPY OF JUDGMENT IN OPC224/18 R1(g) COPY OF JUDGMENT IN OPC1108/19 R1(h) COPY OF JUDGMENT IN OPC.22/20 R1(i) COPY OF JUDGMENT IN OPC.865/20 R1(j) COPY OF LETTER DT 14.2.22 R1(k) COPY OF ACCOUNT STATEMENT.**