High Court of KeralaSingle Judge2019-03-07Writ petition disposed with directions: petitio...

Preetha K v. Authorised Officer, Calicut Co-operative Urban Bank Ltd. No.1538, Kallai Road, Kozhikode-673002; The Calicut Co-operative Urban Bank Ltd. No.1538, represented by its General Manager; Kerala Fishermen Welfare Fund Board, represented by its Commissioner

Case / Petition Number:WP(C).No. 5940 of 2019

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: Devan Ramachandran
Judgment Date: 2019-03-07
Court Decision / Holding: The writ petition is disposed by directing the petitioner to pay Rs.75,000 on or before 27.03.2019. If paid, the balance, along with charges and interest, shall be repaid in eight equal monthly installments commencing from 05.04.2019, with regular EMIs to be paid. The loan account would stand regularised upon compliance, and the petitioner would be at liberty to service the account as per the loan terms. A default will forfeit the benefit and allow the Bank to proceed with SARFAESI measures. The directions are peremptory and no further extensions will be granted except in exceptional circumstances.
Final Disposition: Writ petition disposed with directions: petitioner to pay Rs.75,000 by 27.03.2019; balance to be paid in eight equal monthly installments starting 05.04.2019, along with charges and interest; regular EMI payments to continue; default would nullify relief and permit ongoing SARFAESI proceedings.

Parties to the Case

Appellants / Petitioners

Preetha K

Respondents

Authorised Officer, The Calicut Co-operative Urban Bank Ltd. No.1538, Kallai Road, Kozhikode-673002
The Calicut Co-operative Urban Bank Ltd. No.1538, represented by its General Manager
Kerala Fishermen Welfare Fund Board, represented by its Commissioner

Legal Representation & Advocates

Counsels for Petitioners

• Sivadas C
• Sri V.K. Prasad

Counsels for Respondents

• Sri. Devaprasanth P.J.

Case Synopsis & Summary

Preetha K filed a writ petition challenging proceedings under the Securitisation and Reconstruction of Financial Assets and Enforcement of Securities Interest Act (SARFAESI Act) initiated by the Calicut Co-operative Urban Bank. The Kerala High Court repeatedly emphasizes its jurisdictional constraints, citing Union Bank of India v. Satyawati Tondon (2010) 8 SCC 110 and Authorized Officer, SBT v. Mathew (ILR 2018 (1) Ker. 479), holding that it cannot entertain merits of the Bank’s actions at this stage. The Bank contends that its recovery functions drive its actions and indicates a willingness to consider regularisation if the borrower timely pays overdue amounts and installments. The petitioner requests leniency and a time-bound payment plan to avert coercive measures, arguing financial hardship. The Bank welcomes a settlement proposal and asserts that early payment would serve both sides. The court, while not evaluating the legality of the measures, disposes of the petition by permitting payment with specific milestones: Rs.75,000 by 27.03.2019; the remaining balance, including charges and interest, to be repaid in eight equal installments beginning 05.04.2019, with regular EMIs. A default would revoke the relief and permit continued SARFAESI action. The judgment underscores a balance between amicable settlement and the Bank’s recovery interests, and notes that the directions are peremptory. The Appendix lists disability certificates and representations furnishing supporting material.

Provisions of Law Cited

Securitisation and Reconstruction of Financial Assets and Enforcement of Securities Interest Act, 2002 (SARFAESI Act)

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner sought indulgence from the Bank to allow payment of the overdue amounts in installments, arguing financial constraints and hardship. She asked for a lenient, time-bound settlement path rather than immediate recovery measures, contending that such relief would facilitate loan regularisation while acknowledging the Bank’s recovery interests. The petitioner’s counsel highlighted the burden on the family and the desire to settle, subject to feasible installments.

Contentions of Respondents

The Bank contended that recovery interests govern SARFAESI actions and that it is prepared to consider regularisation if the borrower adheres to a concrete payment plan: Rs.75,000 by 27.03.2019, with the balance to be paid in eight equal installments commencing 05.04.2019, along with charges and interest, while continuing regular EMI payments. The Bank asserted the petitioner’s averments about the children’s cognitive state were incorrect and emphasized the need for prompt recovery; it sought a settlement that would ensure timely repayment but not compromise recovery efforts.

Cited Precedents (2)

Case Name	Citation	Treatment	Explanation
Union Bank of India v. Satyawati Tondon	((2010) 8 SCC 110)	Positive	A binding Supreme Court decision cited to justify the court’s jurisdictional constraint and non-merit enquiry in SARFAESI proceedings.
Authorized Officer, SBT v. Mathew	ILR 2018 (1) Ker. 479	Positive	Court followed this Kerala High Court ILR decision as supportive of the jurisdictional approach in SARFAESI matters.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN** # **THURSDAY ,THE 07TH DAY OF MARCH 2019 / 16TH PHALGUNA, 1940** ## **WP(C).No. 5940 of 2019** ## **PETITIONER/S:** **PREETHA K, AGED 45 YEARS D/O.GOPI, RESIDING AT THEKKETHODI HOUSE, PONNATH PARAMBA, MARAD BEACH, NORTH BEYPORE, KOZHIKODE DISTRICT.** **BY ADVS. SIVADAS C SRI.V.K.PRASAD** ## **RESPONDENT/S:** |**1**|**AUTHORISED OFFICER,**| |---|---| ||**THE CALICUT CO-OPERATIVE URBAN BANK LTD.NO.1538,**| ||**KALLAI ROAD, KOZHIKODE-673002.**| |**2**|**THE CALICUT CO-OPERATIVE URBAN BANK LTD.NO.1538,**| ||**KALLAI ROAD, KOZHIKODE-673002, REPRESENTED BY ITS**| ||**GENERAL MANAGER.**| |**3**|**KERALA FISHERMEN WELFARE FUND BOARD,**| ||**POONKUNNAM, THRISSUR - 680002,**| ||**REPRESENTED BY ITS COMMISSIONER.**| ||**BY ADV. SRI.DEVAPRASANTH.P.J. -SC**| **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 07.03.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WPC 5940/19 2 ## **JUDGMENT** 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.** WPC 5940/19 3 **Satyawati Tondon** ((2010) 8 SCC 110) and followed recently in **Authorised 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 her to pay off the overdue 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 WPC 5940/19 **==> picture [7 x 8] intentionally omitted <==** 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. 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 her an opportunity to pay off the overdue amounts demanded by the Bank. 7. The learned counsel for the Bank, Sri. Devaprasanth P.J, at this time submits that the averments in this writ petition are completely incorrect, especially with respect to the cognitive state of the children of the petitioner and further that the petitioner had agreed to pay off the entire overdues by 09.02.2019. He, however, says that if the WPC 5940/19 5 petitioner pays off the overdue amount of Rs.3,14,359/-, as on 27.02.2019, along with all applicable charges and interest in a short period of time, the Bank may consider the regularisation of the loan **.** He offers that if the petitioner pays Rs.75,000/- on or before 27.03.2019 and the balance in not more than eight installments thereafter, the account can be regularised. 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 **Rs.75,000/-** on or before **27.03.2019;** and if she makes this payment, then she will be permitted to pay off the balance, along with applicable charges and WPC 5940/19 6 interest, in **eight** equal monthly instalments, commencing from **05.04.2019.** She shall also, in addition to this, pay the regular EMIs without fail. If such payment is made by the petitioner, her loan account would stand regularised and she would then be at liberty to service the account as per the terms of the loan sanctioned. 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. 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 WPC 5940/19 7 circumstances, will be permitted and that if the petitioner fails to comply with the directions herein, she will lose the benefit of this judgment and she will also be foreclosed from challenging the measures/proceedings taken by the Bank under the SARFAESI Act and impugned in this writ petition before any other alternative Forum or Court. The writ petition is ordered accordingly. ## **Sd/-** ## **DEVAN RAMACHANDRAN** RR **JUDGE** WPC 5940/19 8 ## APPENDIX PETITIONER'S/S EXHIBITS: EXHIBIT P1 TRUE COPY OF THE CERTIFICATE OF PERMANENT DISABILITY ISSUED TO SARANYAN ON 17.4.18. EXHIBIT P2 TRUE COPY OF THE CERTIFICATE OF PERMANENT DISABILITY ISSUED TO VIPILA ON 17.4.18. EXHIBIT P3 TRUE COPY OF THE REPRESENTATION SUBMITTED TO THE CHIEF MINISTER OF KERALA ON 23.2.18. EXHIBIT P4 TRUE COPY OF FORWARDING LETTER OF BEYPORE MLA DATED 3.10.2018. EXHIBIT P5 TRUE COPY OF THE ACKNOWLEDGMENT OF MLA DATED 25.10.2018. EXHIBIT P6 TRUE COPY OF THE POSSESSION NOTICE DATED 8.2.2019 OF THE ADVOCATE COMMISSIONER.