Shajahan P.A. and others v. Authorized Officer, Deputy General Manager, Muvattupuzha Urban Cooperative Bank Limited, and State of Kerala

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE N.NAGARESH`** ``` MONDAY, THE 13[TH] DAY OF NOVEMBER 2023 / 22ND KARTHIKA, 1945 ``` ## **`WP(C) NO. 4898 OF 2023`** ## **`PETITIONERS:`** |**`1`**|**`SHAJAHAN P.A., SHAFANA MANZIL, RANDAR P.O.,`**| |---|---| ||**`MUVATTUPUZHA, PIN - 686673`**| |**`2`**|**`MUSTHAFA,`**| ||**`KUTTIPARICHEL HOUSE, MARADY P.O.,`**| ||**`MUVATTUPUZHA, PIN - 686673`**| |**`3`**|**`SHYLA MUSTHAFA,`**| ||**`KUTTIPARICHEL HOUSE, MARADY P.O.,`**| ||**`MUVATTUPUZHA, PIN - 686673`**| |**`4`**|**`SHAMILA SHAJAHAN,`**| ||**`SHAFANA MANZIL, RANDAR P.O.,`**| ||**`MUVATTUPUZHA, PIN – 686673`**| ``` BY ADVS. CHITTOOR RAJAMANNAR DILEEP CHITTOOR K.O.ELDO ``` ## **`RESPONDENTS:`** |**`1`**|**`AUTHORISED OFFICER,`**| |---|---| ||**`DEPUTY GENERAL MANAGER, MUVATTUPUZHA URBAN`**| ||**`COOPERATIVE BANK LIMITED, NO.556,`**| ||**`KACHERITHAZHAM, MUVATTUPUZHA, PIN - 686661`**| |**`2`**|**`STATE OF KERALA,`**| ||**`REPRESENTED BY ITS CHIEF SECRETARY,`**| ||**`SECRETARIATE, THIRUVANANTHAPURAM, PIN – 695001`**| ``` BY ADV SAJEEV KUMAR K.GOPAL SMT.RESHMI THOMAS-GOVERNMENT PLEADER ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 13.11.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` WP(C) No.4898 of 2023 ``` ``` 2 ``` ## **JUDGMENT** Dated this the 13[th ] day of November, 2023 The 1[st] petitioner took a loan of 20 lakhs in the year₹ 2014 from the 1[st] respondent-Bank. Periodically, the loan was renewed. But the 1[st] petitioner’s account with the Bank was classified as NPA and the Bank has issued a Demand Notice under Section 13(2) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 to the petitioners. 2. This Court, in view of the Covid-19 Pandemic, initiated a suo motu writ petition for alleviating the misery of the people suffering from the pandemic as W.P.(C) No.11316 of 2021. In the order dated 18.01.2022 in the aforesaid writ petition, at paragraph No.1, it is stated that : “The Full Bench of this Hon’ble Court passed orders directing the State/Central/Public sector undertakings not to take steps for recovery. This Hon’ble Court closed the suo motu writ petition on 06.08.2021 taking note of the closure of the suo motu ``` WP(C) No.4898 of 2023 ``` ``` 3 ``` writ petition initiated by the Hon’ble Supreme Court of India.” ## 3. In Paragraph No.10 of the aforementioned order, it ## is stated that: “W.P.(C) No.11316 of 2021, disposed of on 06.08.2021, is restored. The interim order passed on 19.05.2021 in W.P.(C) No.11316 of 2021 is revived subject to the modifications made later, in the abovesaid writ petition.” 4. In Paragraph No.11 of the aforementioned order, it is stated that: “The interim order passed by this Court on 19.05.2021 and modified subsequently on various dates is revived and extended up to 21.02.2022.” 5. The petitioners are entitled to the benefit of the aforementioned order, not to be visited with recovery proceedings during the prohibited period from 19.05.2021 to 21.02.2022. But, the 1[st] respondent-Bank had initiated recovery proceedings against the petitioners disregarding the aforementioned order of this Court. The 1[st] respondent-Bank issued a possession notice dated 19.12.2021 under Section ``` WP(C) No.4898 of 2023 ``` ``` 4 ``` 13(4) of the aforesaid Act. Now, the petitioners are issued with a notice dated 30.01.2023 by the Advocate Commissioner stating that he would take possession of the secured property after 14 days from 30.01.2023. 6. The 4[th] petitioner had challenged the act of the respondent-Bank of initiating recovery proceedings during the prohibited period by filing a suit O.S No.291 of 2022 before the Munsiff’s Court, Muvattupuzha. The Hon’ble Supreme Court had in **Mardia Chemicals Limited etc. v. U.O.I and others Etc Etc** [2004 (4) SCC 31] held that for limited purposes, the jurisdiction of the Civil Court could be invoked in proceedings under the SARFAESI Act, 2002. The aforesaid suit is pending before the Munsiff’s Court, Muvattupuzha but no interim orders are passed. 7. The 1[st] respondent-Bank issued a reply notice dated 16.03.2022 to the petitioners and stated that : ‘The Hon’ble High Court of Kerala gave direction to State/Central/Public undertakings not to take steps for recovery in its verdict in W.P.(C) No.11316 of 2021. ``` WP(C) No.4898 of 2023 ``` ``` 5 ``` My client’s Bank will not come under the purview of the order.’ 8. The accounts between the petitioners and the 1[st] respondent-Bank are not settled. The petitioners are not provided with copies of loan documents and the statement of accounts. The 1[st] respondent-Bank had withdrawn huge amounts from the 1[st] petitioner’s loan account under various heads other than interest dues. Though the petitioners sought for copies of the documents and accounts statements, the Bank has not provided them. The petitioners are entitled to obtain the exact details of their dues towards the Bank. Till the dues are ascertained, the further recovery proceedings may be kept in abeyance, contend the petitioners. 9. Standing Counsel representing the Bank submitted that pursuant to the failure of the petitioners in repaying the loan, the 1[st] respondent has taken coercive proceedings and secured asset, namely residential premises of the petitioners, was taken over on 08.09.2023. Therefore, there is no question ``` WP(C) No.4898 of 2023 ``` ``` 6 ``` of granting any installment facility for repayment, to the petitioners. 10. The Standing Counsel submitted that in the ordinary course, a One Time Settlement may not be possible. However, if the petitioners make a representation for settlement in the matter, the Bank can consider it in accordance with law. 11. Heard. 12. Admittedly, the petitioners were not successful in making repayments to the advance taken. The outstanding amount as it now stands is more than ₹40 lakhs. In the facts of the case, I am of the view that if the petitioners make any representation to the Bank for settlement of the amount in order to save the residential house of the petitioners, the Bank may consider such proposal and act in accordance with law. The writ petition is therefore disposed of permitting the petitioners to submit a representation to the Bank for settlement of the amount within a period of three weeks. If the ``` WP(C) No.4898 of 2023 ``` ``` 7 ``` petitioners make such representation, it shall be considered in accordance with law. If the petitioners make an application for statement of account, the respondents shall provide copies of the same to the petitioners. **Sd/-** **N.NAGARESH JUDGE** spk ``` WP(C) No.4898 of 2023 ``` ``` 8 ``` ## **`APPENDIX OF WP(C) 4898/2023`** ## **`PETITIONER EXHIBITS`** ``` Exhibit P1TRUE COPY OF THE NOTICE UNDER SECTION 13[2] OF THE SARFAESI ACT 2002 ISSUED TO THE PETITIONERS BY THE RESPONDENT BANK DATED 19-4-2021 ``` ``` Exhibit P2TRUE COPY OF THE REPLY TO THE EXHIBIT PL NOTICE, DATED 23-9-2021 ``` - **`Exhibit P3 TRUE COPY OF NOTICE R:/S 13 RULE 8 [5],8 [6] AND 9 OF SARFAESI ACT 2002 DATED 21-1-2022 TO THE PETITIONERS`** - **`Exhibit P4 TRUE COPY OF THE REPLY TO NOTICE U/S 13 RULE 8[5],8[6]AND 9 OF SARFAESI ACT 2002 DATED 1-3-2022.`** - **`Exhibit P5 TRUE COPY OF G.O.NO.2OLL2021 REV.DATED 22-10-2021 OF REVENUE [H] DEPARTMENT GOVERNMENT OF KERALA.`** ``` Exhibit P6TRUE COPY OF THE ORDER DATED 30-3-2022 OF DEBTS RECOVERY TRIBUNAL- I AT EMAKULAM IN I.A.NO.298/2022 IN S.A. NO.103/2022. ``` - **`Exhibit P7 TRUE COPY OF THE POSSESSION NOTICE DATED 15-12-2021 ISSUED BY THE RESPONDENT BANK.`** - **`Exhibit P8 TRUE COPY OF THE NOTICE ISSUED BY THE ADVOCATE COMMISSIONER DATED 30-01-2023`** - **`Exhibit P9 TRUE COPY OF THE ORDER DATED 18-012022 IN W.P.[C] NO.11316 OF OF 2021 OF THE HON'BLE HIGH COURT OF KERALA`** - **`Exhibit P10 TRUE COPY OF THE PLAINT IN O.S NO.291 OF 2022 ON THE FILES OF THE MUNSIFF'S COURT, MUVATTUPUZHA`** - **`Exhibit P11 TRUE COPY OF THE WRITTEN STATEMENT FILED BY THE DEFENDANT IN O.S NO.291 OF 2022 ON THE FILES OF THE MUNSIFF'S COURT, MUVATTUPUZHA`** - **`Exhibit P12 TRUE COPY OF THE REPLY NOTICE DATED 16-03-2022 ISSUED BY THE COUNSEL OF THE RESPONDENT BANK`** ``` WP(C) No.4898 of 2023 ``` ``` 9 ``` ``` Exhibit P13TRUE COPY OF THE APPLICATION FILED BY THE PETITIONER NO.L BEFORE THE RESPONDENT BANK FOR COPIES OF DOCUMENTS AND STATEMENT OF ACCOUNT RELATING TO THE LOAN AND FOR KEEPING THE RECOVERY PROCEEDINGS IN ABEYANCE Exhibit P14TRUE COPY OF THE REPLY OF THE 1ST RESPONDENT TO THE EXHIBIT P13 APPLICATION FOR CERTIFIED COPIES OF THE DOCUMENTS OF THE LOAN DATED 5-2- 2023, REFUSING TO PROVIDE CERTIFIED COPIES OF THE LOAN DOCUMENTS TO THE 1ST PETITIONER DATED 20-2-2023. Exhibit P15A TRUE COPY OF THE AUCTION NOTICE DATED 3-3-2023 ```