T. Selvaraj and others v. Repco Home Finance Limited

1 **WP(C).No. 5348 of 2019** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN** **THURSDAY ,THE 28TH DAY OF FEBRUARY 2019 / 9TH PHALGUNA, 1940 WP(C).No. 5348 of 2019** ## **PETITIONERS:** **1 T.SELVARAJ AGED 55 YEARS S/O THIRUMALAI SWAMY THEVAR, RESIDING AT RAJ BHAVAN, KURICHY P.O., KOTTAYAM-686 549. 2 JIJI RAJ AGED 50 YEARS W/O T.SELVARAJ, RESIDING AT RAJ BHAVAN, KURICHY P.O., KOTTAYAM-686549. 3 MAHESH KUMAR AGED 30 YEARS S/O T.SELVARAJ, RESIDING AT RAJ BHAVAN, KURICHY P.O., KOTTAYAM-686 549. 4 THIRUMALAI KUMAR AGED 29 YEARS S/O. T. SELVARAJ, RESIDING AT RAJ BHAVAN, KURICHY P.O., KOTTAYAM-686 549. 5 KANNAN THEVAR AGED 28 YEARS S/O T. SELVARAJ, RESIDING AT RAJ BHAVAN, KURICHY P.O., KOTTAYAM-686 549.** **BY ADVS. SRI.T.C.SURESH MENON SRI.A.R.NIMOD SRI.P.S.APPU** ## **RESPONDENTS:** **1 REPCO HOME FINANCE LIMITED 3RD FLOOR, ALEXANDER SQUARE, NEW NO.2 (OLD NOS.34** 2 ## **WP(C).No. 5348 of 2019** **AND 35), SARDAR PATEL ROAD, GUINDY, CHENNAI-600 032, REPRESENTED BY ITS AUTHORIZED OFFICER.** **2 REPCO HOME FINANCE LIMITED REPRESENTED BY ITS BRANCH MANAGER, KOTTAYAM BRANCH, NEAR RAILWAY STATION, ALFIYA ARCADE, KOTTAYAM-686 001.** ## **SRI.P.PAULOCHAN ANTONY-SC** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 28.02.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 3 **WP(C).No. 5348 of 2019** ## **JUDGMENT** Through this writ petition, the petitioners call 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 petitioners and the learned counsel for the respondent Bank. 3. As I proceed to consider the reliefs prayed for by the petitioners 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. Satyawati Tondon** ((2010) 8 SCC 110) and followed recently in **Authorised Officer, SBT v. Mathew** (ILR 2018 (1) Ker. 479). I, 4 ## **WP(C).No. 5348 of 2019** therefore, cannot and do not propose to consider any of the legal contentions raised by the petitioners on its merits. 4. However, obviously being aware of this, the learned counsel appearing for the petitioners have prayed that notwithstanding the limitations of jurisdiction as aforementioned, the petitioners may be granted some leniency or latitude in order to enable them 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 petitioners 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 learned counsel has fairly submitted that the Bank is concerned about recovery at the earliest and that if the petitioners pay 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 5 ## **WP(C).No. 5348 of 2019** and burden that have been alleged and pleaded by the petitioners, I am inclined to dispose of this writ petition allowing them an opportunity to pay off the overdue amounts demanded by the Bank. 7. The learned counsel for the Bank at this time submits that the petitioners can be allowed to pay off the overdue amount, taking into account the EMIs for February and March 2019 is Rs.1,00,34,134/- (Rupees One Crore Thirty Four Thousand One Hundred and Thirty Four only). The petitioners should pay Rs.15 lakhs on or before 12/03/2019, Rs.41 lakhs on or before 31/03/2019 and the balance amount, along with all applicable charges and interest, in 10 equal monthly instalments commencing from 30/04/2019 and that the account can thus be regularised by the Bank. 8. The learned counsel for the petitioners say that the petitioners are agreeable to the above offer made by the Bank and therefore that the writ petition may be ordered granting permission to the petitioners to pay off the amount in the manner as afore. 6 ## **WP(C).No. 5348 of 2019** 9. In such circumstances, I direct the petitioners to pay off the aforementioned overdue amount of Rs.1,00,34,134/- (Rupees One Crore Thirty Four Thousand One Hundred and Thirty Four only). The petitioners should pay Rs.15 lakhs on or before 12/03/2019, Rs.41 lakhs on or before 31/03/2019 and the balance amount, along with all applicable charges and interest, in 10 equal monthly instalments commencing from 30/04/2019. He shall also, in addition to this, pay the regular EMIs without fail. If such payment is made by the petitioners, their loan account would stand regularised and he 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 7 ## **WP(C).No. 5348 of 2019** comply with the same meticulously. I caution the petitioner that no further requests for extension or modification of this judgment will be permitted, save in exceptional circumstances and that if the petitioner fails to comply with the directions herein, he will lose the benefit of this judgment and he 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** **JUDGE** PV 8 ## **WP(C).No. 5348 of 2019** ## **APPENDIX** ## **PETITIONERS' EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE NOTICE UNDER SECTION 13(2) OF THE SARFEASI ACT ISSUED IN THE NAME OF ALL THE PETITIONER BY THE IST RESPONDENT, DATED 29.6.2018. EXHIBIT P2 TRUE COPY OF THE POSSESSION NOTICE ISSUED IN THE NAME OF ALL THE PETITIONERS BY THE IST RESPONDENT DATED 5.12.2018. EXHIBIT P3 TRUE COPY OF THE CERTIFICATE ISSUED BY THE 2ND RESPONDENT DATED 18.8.2017. EXHIBIT P4 TRUE COPY OF THE TENDER-CUM-AUCTION SALE NOTICE ISSUED BY THE IST RESPONDENT, DATED 2.2.2019.** ## **RESPONDENTS' EXHIBITS: NIL** \\TRUE COPY// PA TO JUDGE PV