Judgment
2025:KER:28204 WP(C) NO. 2453 OF 2024 1 IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE GOPINATH P.
WEDNESDAY, THE 2ND DAY OF APRIL 2025 / 12TH CHAITHRA, 1947 WP(C) NO. 2453 OF 2024 PETITIONER/S:
1 THILAKARAJAN.K.P, AGED 51 YEARS S/O. NAROTH KUMARAN, KUNHIPARAMBATH HOUSE, POYILOOR, THRIPPANGOTTUR, THOOVAKKUNNU P.O., KANNUR, PIN - 670693 2 MURALIDHARAN.K., S/O.KUNHISANKARAN NAMBIAR, KADANNOLIL, POYILOORP.O., KANNUR, PIN - 670693 3 SANITHA.M, W/O. MURALEEDHARAN.K. KADANNOLIL, POYILOORP.O., KANNUR, PIN - 670693 4 REJELA.K.P, D/O. KUMARAN, PANICHINGENTAVIDA HOUSE, POYILOORP.O., KANNUR – ., PIN - 670693 5 ELSY.K.P, W/O. BALAKRISHNAN, PAREMMAL HOUSE, NORTH POYILOOR, POYILOORP.O., KANNUR – ., PIN - 670693 6 M/S. TEYEM SAND AND BRICKS, KOLAYAD, VAYANNOOR P.O., KANNUR DISTRICT - REPRESENTED BY ITS MANAGING PARTNER THILAKARAJAN.K.P., PIN - 670650 BY ADVS.
K.C.SANTHOSHKUMAR K.K.CHANDRALEKHA RESPONDENT/S:
1 STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, FINANCE DEPARTMENT, GOVERNMENT OF KERALA, THIRUVANANTHAPURAM, PIN - 695001
2025:KER:28204 WP(C) NO. 2453 OF 2024 2 2 M/S. SOUTH INDIAN BANK REGIONAL OFFICE, DOOR NO.4/110-K, KVR TOWER, OPP. LIC OFFICE, PAMPAN MADHAVAN ROAD, TALAP, KANNUR- REPRESENTED BY ITS AUTHORISED OFFICER, PIN - 670002 3 THE BRANCH MANAGER, SOUTH INDIAN BANK, KUTHUPARAMBA BRANCH, KUTHUPARAMBA, KANNUR, PIN - 670643 BY ADVS.
Mohan Jacob George P.V.PARVATHY (P-41)(K/000036/1991) REENA THOMAS(R-364) NIGI GEORGE(K/1169/2012) ANANTHU V.LAL(K/001233/2022) THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 02.04.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
2025:KER:28204 WP(C) NO. 2453 OF 2024 3 JUDGMENT
Petitioners are the partners of a firm operating under the name and style ‘M/s.Teeyem Sand and Bricks’, Kolayad, Vayannoor PO, Kannur district. The petitioners had availed credit facilities from the respondent bank. On default being committed, proceedings have been initiated against the petitioners under the provisions of the SARFAESI Act. The 1st petitioner approached this Court by filing W.P.(C) No. 16305 of 2023, which was disposed of on 20.06.2023 finding no reason to exercise the extra ordinary jurisdiction vested in this Court under Article 226 of the Constitution of India. However, taking note of the fact that a proposal for One Time Settlement is pending, this Court directed the respondent bank to consider the proposal for One Time Settlement submitted, after affording an opportunity of hearing to the petitioner. It was also held that if the respondent bank rejects the proposal of One Time Settlement, the petitioner would be at liberty to exhaust his statutory remedies.
2. It appears that, the petitioners thereafter approached this Court by filing the present writ petition, projecting a complaint that, despite the directions contained in Exhibit P1
2025:KER:28204 WP(C) NO. 2453 OF 2024 4 judgment of this Court, the respondent bank had not considered the proposal for One Time Settlement. The petitioners also sought a direction to the respondent to renew certain overdraft facilities without considering the delay in submitting the GST returns etc. The petitioners also sought for a declaration that Exhibit P6 notice issued by the Advocate Commissioner for taking physical possession of the secured assets is unsustainable in law.
3. A counter affidavit has been filed by the respondent bank wherein it is stated that the One Time Settlement proposal submitted by the petitioners was actually submitted only on 25.11.2024. It is submitted that, the proposal for One Time Settlement was considered and the bank had permitted the petitioners to settle the entire liability by paying a sum of Rs.1.10 Crores by 25.12.2024. It is submitted that, the petitioners had paid only a sum of Rs.15 lakh by 25.12.2024. It is also pointed out that though there was a submission made before this Court that, at the time of disposal of W.P.(C) No. 16305 of 2023, there was a proposal for One Time Settlement pending before the bank, factually there was no such proposal pending before the bank and the first proposal for One Time Settlement was submitted only on 25.11.2024.
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4. Having heard the learned counsel appearing for the petitioners and the learned counsel appearing for the respondent bank, I am of the view that the petitioners cannot be granted the reliefs sought for in the writ petition. The first relief sought for is for a direction to the respondent bank to consider the proposal for One Time Settlement. A reading of the counter affidavit indicates that the proposal for One Time Settlement was considered and the One Time Settlement was also granted to the petitioners. However, the petitioners failed to remit the amounts within the time specified in the sanction issued by the bank. It is settled law that this Court cannot, in the exercise of jurisdiction under Article 226 of the Constitution of India, direct the bank to extend the time for payment under One Time Settlement even by imposing any additional condition [See State Bank of India V.
Sham; 2024 (6) KLT 865].
5. The other relief sought for by the petitioners is for a direction to the bank to renew the overdraft facilities mentioned in prayer No.(ii). Learned counsel appearing for the petitioners states that the overdraft facilities mentioned in prayer No.(ii) of the writ petition have already been renewed.
6. The third relief sought for by the petitioners is to quash Exhibit P6 notice issued by the Advocate Commissioner as
2025:KER:28204 WP(C) NO. 2453 OF 2024 6 the same effectively prevents the petitioners from seeking statutory remedies. The relief of quashing Exhibit P6 cannot be granted as it is settled that, on issuance of notice under Section 14 of the SARFAESI Act by the Advocate Commissioner, it is open to a borrower to approach the Debts Recovery Tribunal by filing a Securitization Application. Therefore, the contention of the petitioners that the issuance of Exhibit P6 notice by the Advocate Commissioner amounts to a negation of their right to avail statutory remedies also cannot be accepted.
The writ petition fails and it is accordingly dismissed. I make it clear that the dismissal of this writ petition shall not prevent the petitioners from seeking statutory remedies, if so advised. Considering the fact that this writ petition has been pending before this Court from 19.01.2024 till today (02.04.2025), it is directed that, if the petitioners wish to avail any statutory remedies, the period from 19.01.2024 till today (02.04.2024) shall be excluded for the purposes of determining any period of limitation within which the petitioners had to avail statutory remedies.
Sd/- GOPINATH P.
JUDGE ajt
2025:KER:28204 WP(C) NO. 2453 OF 2024 7 APPENDIX OF WP(C) 2453/2024 PETITIONER EXHIBITS Exhibit P1 THE TRUE COPY OF THE JUDGMENT DATED 20.06.2023 IN WP(C) NO.16305/2023 Exhibit P2 TRUE COPY OF THE DEMAND NOTICE DATED 19.12.2022 ISSUED BY THE 2ND RESPONDENT BANK Exhibit P3 TRUE COPY OF THE REQUEST DATED 10.05.2023 SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT Exhibit P4 TRUE COPY OF THE COMMUNICATION DATED 19.05.2023 ISSUED BY THE 2ND RESPONDENT Exhibit P5 THE TRUE COPY OF THE COMMUNICATION DATED 19.08.2023 ISSUED BY THE 3RD RESPONDENT Exhibit P6 TRUE COPY OF THE NOTICE DATED 10.01.2024 ISSUED BY THE ADVOCATE COMMISSIONER Exhibit P7 THE TRUE COPY OF THE REQUEST DATED 28.05.2024 SUBMITTED BY THE PETITIONER BEFORE THE MANAGER, SOUTH INDIAN BANK, KUTHUPARAMBA Exhibit P8 THE TRUE COPY OF THE REPRESENTATION DATED 12.02.2024 SUBMITTED BEFORE THE 2ND RESPONDENT Exhibit P9 THE TRUE COPY OF THE POSTAL RECEIPT EVIDENCING THE SENDING OF EXHIBIT P8 REPRESENTATION Exhibit P10 THE TRUE COPY OF THE RECEIPT DATED 30.11.2024 RESPONDENT EXHIBITS Exhibit R2(a) Copy of the OTS proposal dated 25.11.2024 submitted by the 1 st Petitioner to the Respondent bank