Sudheesh C.S. v. IndusInd Bank Ltd.

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: N. Nagareesh
Judgment Date: 2022-02-14
Court Decision / Holding: With the above observations, these writ petitions are dismissed.
Final Disposition: Writ petitions dismissed

Parties to the Case

Appellants / Petitioners

Sudheesh C.S

Respondents

IndusInd Bank Ltd

Legal Representation & Advocates

Counsels for Petitioners

• Cherian Mathew Poothicote
• Ajith Villy George

Case Synopsis & Summary

Sudheesh C.S., the petitioner in two connected WP(C)s before the Kerala High Court, challenges two linked proceedings arising from a loan taken by his deceased father from IndusInd Bank Ltd. on 15 October 2017. The father repaid until 2018, and after his death the petitioner continued remittances. Due to Covid-19 lockdown, there occurred defaults in repayment, and the bank initiated arbitral proceedings of which the petitioner alleges he had no notice and that an arbitral award was passed in the bank’s favour. The petitioner contends the arbitration proceedings violate the basic principles of natural justice and prays for quashing Ext.P1, the Commercial Court’s proceedings in Sulthan Bathery, and to stop further action. In WP(C) 4279/2022, the petitioner challenges EP No.236/2021 against his deceased father, arguing that execution against a dead person is non est and that reasonable opportunity to defend was denied, citing Krishna Mohan Medical College v. Union of India to emphasise audi alteram partem. The court, noting private commercial transactions and lack of state involvement, held writ petitions not maintainable against the bank and observed that the Arbitration and Conciliation Act provides an alternate remedy. It ordered that, if a fair offer is made before the Commercial Court, the court may consider it, dismissing the petitions overall.

Provisions of Law Cited

Arbitration and Conciliation Act

Legal Doctrines & Maxims

Natural justice
Audi alteram partem (fair hearing)

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner contends that the loan to his deceased father was repaid until 2018 and that, after his father’s death, he continued remittances; no notice of arbitral proceedings was issued to him, and an arbitral award was passed in the bank’s favour, violating natural justice and the audi alteram partem principle. Ext.P1 (the Commercial Court order) should be quashed and all further proceedings against the petitioner halted. Execution against a dead borrower is improper, and the proceedings must satisfy the due process of law. The petition relies on Krishna Mohan Medical College v. Union of India to support the necessity of fair hearing. The petition seeks the opportunity to be heard and time to clear any dues, within the framework of the Arbitration and Conciliation Act.

Contentions of Respondents

The bank argues that the underlying transactions are private commercial matters and not public duties of a State, hence writ petitions are not maintainable. The Arbitration and Conciliation Act provides a complete code with an alternate remedy; if any order under the Act is issued, it should be addressed through the statutory remedy rather than through writ jurisdiction. The matter should be adjudicated within the arbitration framework and/or commercial court proceedings, and a writ intervention is inappropriate in private contractual disputes.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Krishna Mohan Medical College and Hospital v. Union of India	2017 (4) KLT 2005 (SC)	Positive	Cited to establish that a reasonable opportunity of hearing equates to fair hearing (audi alteram partem).

Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE N.NAGARESH** **MONDAY, THE 14[TH] DAY OF FEBRUARY 2022 / 25TH MAGHA, 1943 WP(C) NO. 4279 OF 2022** ## **PETITIONER:** **SUDHEESH C.S AGED 35 YEARS S/O,SASIDHARAN, AGED 35 CHERUTHOTINKARA HOUSE, KATTIKULAM POST, SECOND GATE, MANATHAVADI TALUK, WAYANAD DISTRICT PIN - 670646 BY ADVS. CHERIAN MATHEW POOTHICOTE AJITH VILLY GEORGE** ## **RESPONDENT:** **INDUSIND BANK LTD HAVING ITS REGISTERED OFFICE AT NO.116, GN CHETTY ROAD, T NAGAR, CHENNAI-600017 REPRESENTED BY LEGAL EXECUTIVE AND POWER OF ATTORNEY HOLDER PRANOY C S/O PRASANNAN C, AGED 29 INDUSIND BANK, KARUPALLI SQUARE , Y.M.C.A CROSS ROAD CALICUT, PIN - 673004** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 14.02.2022, ALONG WITH WP(C).3971/2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C) NOS. 3971 OF 2022 & 4279 OF 2022** **2** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE N.NAGARESH** **MONDAY, THE 14[TH] DAY OF FEBRUARY 2022 / 25TH MAGHA, 1943 WP(C) NO. 3971 OF 2022** ## **PETITIONER:** **SUDHEESH C.S AGED 35 YEARS CHERUTHOTINKARA HOUSE, KATTIKULAM POST, SECOND GATE, MANATHAVADI TALUK, WAYANAD DISTRICT PIN - 670646 BY ADVS. CHERIAN MATHEW POOTHICOTE AJITH VILLY GEORGE** **RESPONDENT:** **INDUSIND BANK LTD HAVING ITS REGISTERED OFFICE AT NO.116, GN CHETTY ROAD, T NAGAR REPRESENTED BY LEGAL EXECUTIVE AND POWER OF ATTORNEY HOLDER PRANOY C S/O PRASANNAN C, AGED 29 INDUSIND BANK, KARUPALLI SQUARE , Y.M.C.A CROSS ROAD CALICUT - 673004** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 14.02.2022, ALONG WITH WP(C).4279/2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C) NOS. 3971 OF 2022 & 4279 OF 2022** **3** ## **JUDGMENT** Dated this the 14[th] day of February, 2022 The same petitioner has filed both these writ petitions. In WP(C) No.3971/2022, the petitioner stated that his deceased father availed an amount from the respondent-Bank on 15.10.2017. The petitioner's father did not make any default in making repayment until 2018. After the demise of the father, the petitioner continued to make the remittances. 2. Due to Covid-19 lockdown and consequential situation, there occurred default in repayment of instalments. In the meanwhile, the respondent-Bank initiated arbitral proceedings against the petitioner. The petitioner was not aware of the arbitral proceedings. The petitioner states that no notice was issued to the petitioner with respect to the arbitral proceedings and an Award was passed in favour of the respondent-Bank. The arbitration Award is illegal and offends **WP(C) NOS. 3971 OF 2022 & 4279 OF 2022** **4** the basic principles of natural justice. The petitioner therefore prayed that Ext.P1 proceedings of the Commercial Court, Sulthan Bathery be quashed and all further proceedings initiated against the petitioner be stopped. 3. In WP(C) No.4279/2022, the petitioner's challenge is against EP No.236/2021. The petitioner stated that execution proceedings are initiated against the petitioner's father who is no more. Any proceedings against a dead person should be treated as non est. The proceedings were initiated without granting reasonable opportunity to the petitioner to defend the case. The Hon'ble Apex Court in _**Krishna Mohan Medical College and Hospital v. Union of India [2017 (4) KLT 2005 (SC)]**_ has held that reasonable opportunity of hearing is synonymous to fair hearing. It is an important ingredient of _audi alteram partem_ rule. Therefore, the proceedings now initiated against the petitioner and his deceased father cannot stand the scrutiny of law. Ext.P1 is liable to be set aside, contended the **WP(C) NOS. 3971 OF 2022 & 4279 OF 2022** **5** petitioner. 4. I have heard the learned counsel for the petitioner. In the writ petition filed by the petitioner, the only respondent is Induslnd Bank Ltd. The Induslnd Bank Ltd. is neither a State nor an instrumentality of the State, against which a writ petition normally lies. 5. The transactions involved are purely private commercial transactions. It does not reflect any public duty on the part of the respondent-Bank. Therefore, the writ petitions are not maintainable against the respondents. Furthermore, the proceedings initiated against the petitioner is under the Arbitration and Conciliation Act. The Arbitration and Conciliation Act is a complete Code in itself. If any order is passed against the petitioner under the said Act, the Act provides for effective alternate remedy. For that reason also, this Court is not inclined to entertain these writ petitions. 6. The learned counsel for the petitioner urged that had **WP(C) NOS. 3971 OF 2022 & 4279 OF 2022** **6** the petitioner been given a fair opportunity of hearing, the petitioner was ready and willing to clear off liabilities dues if any, from the petitioner, provided the petitioner is given a reasonable time. This Court is of the view that as the execution petition has been initiated before the Commercial Court, Sulthan Bathery, if the petitioner makes suitable offer before the Court, it is for the said Court to consider such proposal made by the petitioner fairly. With the above observations, these writ petitions are dismissed. Sd/- **N.NAGARESH JUDGE** spk **WP(C) NOS. 3971 OF 2022 & 4279 OF 2022** **7** ## **APPENDIX OF WP(C) 3971/2022** **PETITIONER EXHIBITS** **ExhibitP1** **A TRUE COPY OF THE EP NUMBERED 235 / 2021 OF THE COMMERCIAL COURT SULTHAN BATHERY DATED 10/1/2022** ## **RESPONDENT'S/S EXHIBITSN : NIL** **WP(C) NOS. 3971 OF 2022 & 4279 OF 2022** **8** ## **APPENDIX OF WP(C) 4279/2022** ## **PETITIONER EXHIBITS** **Exhibit P1** **A TRUE COPY OF THE EP NUMBERED 236 / 2021 OF THE COMMERCIAL COURT SULTHAN BATHERY DATED 10/1/2022** **RESPONDENT'S/S EXHIBITSN : NIL**