Salim C. A. v. Cholamandalam Investment and Finance Co. Ltd.

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: C. S. Dias
Judgment Date: 2023-06-27
Court Decision / Holding: Writ petitions are dismissed without prejudice to the right of the petitioner to work out his remedies in accordance with law.
Final Disposition: Writ petitions dismissed.

Parties to the Case

Appellants / Petitioners

Salim C. A.

Respondents

Cholamandalam Investment and Finance Co. Ltd

Legal Representation & Advocates

Counsels for Petitioners

• Adv. Mini K.
• Adv. P. Usha Kumari

Counsels for Respondents

• P. V. Saritha Venugopal
• N. P. Ruksana
• Rohini P.K.
• V. Jaichandran
• S. Sunil Kumar

Case Synopsis & Summary

The petitions challenge actions under the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 by Cholamandalam Investment and Finance Company Ltd. The petitioner Salim C. A. availed a housing loan secured by an equitable mortgage by deposit of title deeds; due to circumstances beyond his control, he could not keep up with installments. The lenders proceeded against the secured asset under SARFAESI, and the petitioner sought to pay the overdue amount in installments and have the loan account regularized. The court had previously allowed Ext. P3, a proposal under the One Time Settlement Scheme, but the petitioner failed to pay the agreed amount. The case notes that there is no presiding officer in the Debt Recovery Tribunal, hindering the petitioner's ability to approach the tribunal for relief. The respondents argued that possession had already been taken and that the petitioner trespassed into the property; they further stated they would initiate separate proceedings for re-possession and were not prepared to permit installments. The court cited the Supreme Court's decision in South Indian Bank Ltd. v. Naveen Mathew Philip (2023 LiveLaw SC 320), which cautions against interference by High Courts in SARFAESI actions under Article 226, except in extraordinary circumstances. On the facts, the court found no extraordinary circumstance and dismissed the petitions, while reserving the petitioner's right to pursue remedies in law.

Provisions of Law Cited

Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002Constitution of India, Article 226

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioners contend that they availed a housing loan secured by an equitable mortgage by deposit of title deeds and, due to circumstances beyond their control, could not pay installments on time. They are willing to pay the overdue amount in installments and seek regularization of the loan account. Ext.P3 provided for a One Time Settlement, which the petitioner attempted but could not meet the settlement amount. They argue there is no presiding Officer in the Debt Recovery Tribunal to facilitate relief and emphasize the lack of extraordinary circumstances justifying interference by the High Court in SARFAESI proceedings.

Contentions of Respondents

The respondents submit that possession has already been taken under the Act and that the petitioner trespassed into the property; they are initiating separate proceedings for re-possession and are not willing to permit installment-based repayment. They contend the writ petitions are meritless and should be dismissed, noting that SARFAESI actions are typically not subject to writ review in ordinary circumstances.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
South Indian Bank Ltd v. Naveen Mathew Philip	(2023) LiveLaw (SC) 320	Positive	SC held that High Courts should not ordinarily interfere with SARFAESI proceedings under Article 226, except in extraordinary circumstances; the Kerala High Court applied this principle to deny interference.

Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **TUESDAY, THE 27[TH] DAY OF JUNE 2023 / 6TH ASHADHA, 1945** **WP(C) NO. 15383 OF 2023** ## **PETITIONER/S:** SALIM C. A. AGED 49 YEARS S/O.MR.ALI C.M., CHULAKKAPARAMBIL HOUSE, KUZHIPPALLY, MAYA BAZAR, VACHAKKAL P. O., EDAVANAKKAD, PIN - 682502 BY ADV MINI K. ## **RESPONDENT/S:** 1 CHOLAMANDALAM INVESTMENT AND FINANCE CO. LTD GEOJIT BUILDING, PADIVATTOM P.O., PALARIVATTOM, KOCHI, REP BY BRANCH MANAGER, PIN - 682024 2 CHOLAMANDALAM INVESTMENT AND FINANCE CO. LTD DARE HOUSE, 2, N.S.E BOSE ROAD, PARRYS, CHENNAI, REP BY ITS CHAIRMAN, PIN - 600001 3 CHOLAMANDALAM INVESTMENT AND FINANCE CO. LTD DARE HOUSE, 2, N.S.E BOSE ROAD, PARRYS, CHENNAI, REPRESENTED BY ITS MANAGING DIRECTOR, PIN - 600001 BY ADVS. P.V.SARITHA VENUGOPAL N.P.RUKSANA ROHINI P.K. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 27.06.2023,ALONG WITH WPC NO.15942/2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 15383 & 15942 OF 2023 2 # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **TUESDAY, THE 27[TH] DAY OF JUNE 2023 / 6TH ASHADHA, 1945 WP(C) NO. 15942 OF 2023** ## **PETITIONER/S:** SALIM.C.A,AGED 49 YEARS, SALIM.C.A, S/O.ALI.C.M, CHULAKKAPARAMBIL HOUSE, KUZHIPPALLY, MAYA BAZAR, VACHAKKAL.P.O, EDAVANAKKAD, ERNAKULAM DISTRICT.682502 BY ADV P.USHAKUMARI ## **RESPONDENT/S:** 1 THE BRANCH MANGER ,CHOLAMANDALAM INVESTMENT & FINANCE COMPANY LIMITE GEOJIT BUILDING, PADIVATTOM.P.O, PALARIVATTOM, ERNAKULAM, KOCHI -682024 2 CHOLAMANDALAM INVESTMENT & FINANCE COMPANY LIMITED, DARE HOUSE, 2,N.S.E.BOSE ROAD, PARRYS, CHOLAMANDALAM INVESTMENT & FINANCE COMPANY LIMITED, DARE HOUSE, 2,N.S.E.BOSE ROAD, PARRYS, CHENNAI.600001, REPRESENTED BY ITS MANAGING DIRECTOR. 3 THE MANAGING DIRECTOR., CHOLAMANDALAM INVESTMENT & FINANCE COMPANY LIMITED, DARE HOUSE, 2,N.S.E.BOSE ROAD, PARRYS, CHENNAI.600001. BY ADVS. P.V.SARITHA VENUGOPAL N.P.RUKSANA V.JAICHANDRAN S.SUNIL KUMAR (PALAKKAD) THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 27.06.2023,ALONG WITH WPC NO.15383/2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 15383 & 15942 OF 2023 3 ## **COMMON JUDGMENT** These writ petitions are filed, inter-alia, to direct the respondents to permit the petitioner to pay off the overdue amount in installments and regularise the loan account. 2. The petitioner's common case in the writ petitions is that he had availed a housing loan from the respondents by creating an equitable mortgage by deposit of title deeds. Due to reasons beyond his control, he could not pay the installments in time. The respondents have proceeded against the secured asset under the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (in short, 'Act'). The petitioner is prepared to pay off the overdue amount in installments. By Ext.P3 judgment, this Court had permitted the petitioner to submit a proposal before the respondents to avail the One Time Settlement Scheme. But, the petitioner was WP(C) NO. 15383 & 15942 OF 2023 **==> picture [7 x 9] intentionally omitted <==** unable to pay the agreed amount. As there is no Presiding Officer in the Debt Recovery Tribunal, the petitioner is unable to move the Tribunal. Now the respondents are threatening to take possession of the petitioner's property. Hence, the Writ Petition. 3. Heard; the learned Counsel appearing for the petitioner and the learned Counsel appearing for the respondents. 4. The learned Counsel appearing for the respondents submitted that the respondents have already taken physical possession of the property invoking the provisions of the Act. The petitioner has trespassed into the property and the respondents are initiating separate proceedings to re-possess the property. The respondents are not willing to permit the petitioner to pay off the outstanding amount in installments. The writ petitions are meritless, and may be dismissed. WP(C) NO. 15383 & 15942 OF 2023 5 5. The Hon’ble Supreme Court in **South Indian Bank Ltd vs. Naveen Mathew Philip** (2023 LiveLaw (SC) 320), after adverting to a myriad of earlier judicial pronouncements, has categorically declared that High Courts shall not, unless in extra ordinary circumstances, interfere with proceedings initiated under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002, in writ proceedings under Article 226 of the Constitution of India. 6. Having considered the pleadings and materials on record and taking note of the fact that this Court has already passed Ext.P3 judgment and thereafter the petitioner has filed two writ petitions for identical relief, I do not find any extraordinary circumstances to entertain the writ petitions by exercising the discretionary powers of this Court under Article 226 of the Constitution India. Nonetheless, it would be upto WP(C) NO. 15383 & 15942 OF 2023 **==> picture [7 x 9] intentionally omitted <==** the petitioner to work out his statutory remedies in accordance with law. Resultantly, the writ petitions are dismissed without prejudice to the right of the petitioner to work out his remedies in accordance with law. Sd/- **C.S.DIAS JUDGE** rkc/27.06.23 WP(C) NO. 15383 & 15942 OF 2023 7 ## **APPENDIX OF WP(C) 15383/2023** PETITIONER EXHIBITS Exhibit P1 THE TRUE COPY OF THE NOTICE DATED 03-012023 ISSUED BY THE ADVOCATE COMMISSIONER TO THE PETITIONER Exhibit P2 THE TRUE COPY OF THE JUDGMENT DATED 1703-2023 PASSED BY THIS HONORABLE COURT IN WP (C ) NO. 1235/2023 Exhibit P3 THE TRUE COPY OF THE PROPOSAL DATED 2203-2023 SUBMITTED BY THE PETITIONER BEFORE THE FIRST RESPONDENT Exhibit P4 THE TRUE COPY OF THE REPLY DATED 18-042023 SENT BY THE SECOND RESPONDENT TO THE PETITIONER WP(C) NO. 15383 & 15942 OF 2023 8 ## **APPENDIX OF WP(C) 15942/2023** PETITIONER EXHIBITS Exhibit-P1 A TRUE COPY OF THE STATEMENT OF ACCOUNT DATED 09.11.2022 ISSUED BY THE FIRST RESPONDENT. Exhibit.P2 A TRUE COPY OF THE NOTICE PUTTING THE DATE AS 03.01.2023 BY THE ADVOCATECOMMISSIONER TO THE PETITIONER. Exhibit-P3 A TRUE COPY OF THE JUDGMENT DATED 17.03.2023 IN WPC NO.1235/2023. RESPONDENT EXHIBITS Exhibit-R1(a) True copy of the judgment in WP(C )No1235/2023 of Honble High court of Kerala dated 17.03.2023 PETITIONER EXHIBITS Exhibit4.P4 A TRUE COPY OF THE REPLY DATED 18.04.2023 ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER. RESPONDENT EXHIBITS Exhibit-R1(b) True copy of the reply sent by the Respondent No-1 to Petitioner dated 18.04.2023 Exhibit-R1(c) True copy of the police complaint submitted by the Respondent No-1 before SHO North Paravur Police Station dated 24.05.2023 Exhibit-R1(d) True copy of the receipt in Petition No52546/2023 issued by SHO North Paravur Police Station dated 24.05.2023 WP(C) NO. 15383 & 15942 OF 2023 **==> picture [7 x 9] intentionally omitted <==** ## PETITIONER ANNEXURES Annexure A1 TRUE COPY OF THE MEDICAL PRESCRIPTION DATED 28.05.2023 Annexure A1(a) TRUE COPY OF THE MEDICAL CERTIFICATE DATED 28.05.2023