The Branch Manager, The South Indian Bank Limited v. Sudhir A.C.
Original PDF →WA:728/2022 -:1:- IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR & THE HONOURABLE MR. JUSTICE SHAJI P.CHALY WEDNE AY, THE 15TH DAY OF JUNE 2022 / 25TH JYAISHTA, 1944 WA NO. 728 OF 2022 AGAINST THE JUDGMENT IN WP(C) 20896/2021 OF HIGH COURT OF KERALA APPELLANT/S: 1 THE BRANCH MANAGER, THE SOUTH INDIAN BANK LIMITED PULINATTU PROPERTIES, M.C.ROAD, VELLOORKUNNAM, MARKET P.O., MUVATTUPUZHA - 678 673. 2 THE AUTHORIZED OFFICER (CHIEF MANAGER) SOUTH INDIAN BANK LIMITED, REGIONAL OFFICE, SIB BUILDING, INFOPARK ROAD, RAJAGIRI VALLEY P.O., KAKKANADU, KOCHI - 682 039. BY ADVS. MOHAN JACOB GEORGE P.V.PARVATHY (P-41) REENA THOMAS NIGI GEORGE RESPONDENT/S: 1 SUDHIR A.C. AGED 50 YEARS S/O.CHANDRASEKHARAN NAMBUTHIRI, AYINIPPILLIL MANA, MEKADAMBU P.O, MUVATTUPUZHA - 682 316. 2 SREEJA SUDHIR W/O.SUDHIR A.C., AYINIPPILLIL MANA MEKADAMBU P.O., MUVATTUPUZHA - 682 316. 3 A.P.ARYADEVAN NAMBOODIRI S/O.PARAMESWARAN NAMBOODIRI, AYINIPPILLIL MANA, MEKADAMBU P.O., MUVATTUPUZHA - 682 316. 4 A.P.SIVADAS NAMBOODIRI S/O.PARAMESWARAN NAMBOODIRI, AYINIPPILLIL MANA, MEKADAMBU P.O., MUVATTUPUZHA - 682 316. 5 ROY YOHANNAN S/O.YOHANNAN, PYNADATH HOUSE, NAYATHODE P.O., ANGAMALY - 683 572. SRI. JOMON K VARGHESE FOR R1 THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 15.06.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WA:728/2022 -:2:- J U D G M E N T S. Manikumar, C. J. Before the writ court, petitioner/respondent No.1 herein sought for the following reliefs: “(i) To issue writ, order or direction, in the nature of mandamus, directing the 1st respondent - The Branch Manager, South Indian bank, Muvattupuzha, to consider Exhibit-P2 representation dated 23.09.2021 and grant 15 monthly installments to the petitioner for paying the arrear amounts and thereby to regularize the loan account, in the interest of justice; (ii) To stay all further recovery proceedings pursuant to Exhibit-P1 notice dated 7.6.2021 till Exhibit-P2 representation is disposed of and the account is regularized.
Short facts leading to the filing of the writ petition are as under:- a) Petitioner is one of the partners of the firm under the name and style "AYRO INDUSTRIES". He had availed various loan facilities from South Indian Bank, Muvattupuzha, after creating mortgage. Repayment was regular till the last few months. Thereafter, due to Covid - 19 situation and huge financial crisis he faced, the repayment became irregular. In such circumstances, Authorized
WA:728/2022 -:3:- Officer, South Indian Bank, Muvattupuzha, the 2nd respondent, has issued Ext.P1 demand notice under Section 13(2) of the SARFAESI Act, 2002. Though, the petitioner has submitted Ext.P2 representation dated 23.09.2021 seeking installment facility for regularizing the loan account, it did not evoke any positive response. c) Before the writ court, petitioner has sought for installment facilities, for clearing the arrears and thereby, to regularize the loan account. According to the writ petitioner, unless effective directions are issued from this Court, to keep further proceedings in abeyance, pursuant to Ext.P1 notice, till installment is granted for regularization, he would be put to heavy loss and hardships.
Bank contested the writ petition by filing a statement. However, during the course of hearing, writ petitioner has confined the relief, to an opportunity for repaying the overdue amount in installments and for regularization of the loan account.
Bank seemed to have accepted the said request, and on the basis of the same, writ court, directed regularization of the loan account and renewed the overdraft facility, and ordered as under:
WA:728/2022 -:4:- “6. Therefore, the respondent-Bank is directed to regularize the loan account and renew the overdraft facility on the following conditions: (i). The overdue amount of Rs.67 Lakhs shall be repaid in a total of '11' instalments, on condition that an amount of Rs.12,00,000/- (Rupees Twelve lakhs only) be paid by the petitioner on or before 30.03.2022. (ii). If the said amount is paid as directed above, the petitioner will be entitled to clear the balance amount, after deducting the said amount of Rs.12,00,000/-, in '10' equated monthly instalments, commencing from 30.04.2022 and the remaining instalments payable on or before the 30 th of the succeeding months. (iii). Petitioner shall continue to pay the regular EMI’s along with the instalments directed above due under the term loans. (iv). Petitioner shall furnish the financial documents specified by the Bank in the statement dated 06.12.2021, which are as follows: 1) Annual Financial Statement 2017-18 & e Filed financial directly downloaded from IT site, ITR with computation. 2) Annual Financial Statement 2018-19 & e Filed financial directly downloaded from IT site, ITR with computation. 3) Annual Financial Statement 2019-20 & e Filed financial directly downloaded from IT site, ITR with computation. 4) Audited Financials/Provisional Financials 2020—21 5) GST Returns for the last 12 months 6) Latest local body license 7) Estimated Financial 2021-22
WA:728/2022 -:5:- 8) Projected Financials 2022-23 9) Latest land tax paid receipts, building tax paid receipts. 10) Loan renewal application and INWs duly signed by applicants. (v) If the aforesaid conditions are complied with, the respondent Bank shall regularise the term loan account of the petitioner and renew the overdraft facility. (vi) In the event of default of any one instalment, the respondent bank shall be entitled to proceed in accordance with law. (vii) In order to enable the petitioner to repay the entire amounts, all coercive proceedings initiated against the petitioner shall be kept in abeyance. The writ petition is disposed of.”
Being aggrieved, instant writ appeal is filed by the Bank on the grounds, inter alia, that when the writ petition itself is not maintainable, writ court ought not have granted 11 months' time for regularization of the loan account. Reliance is also placed on the decisions of the Hon'ble Supreme Court.
We have heard Mr. Mohan Jacob George, learned counsel for the appellants, and perused the material on record.
Though Mr. Mohan Jacob George, learned counsel for the appellants, submitted that the Bank had not conceded for repayment in
WA:728/2022 -:6:- installments and renewal of overdraft facility, perusal of paragraph Nos. 3 and 5 of the judgment made in W. P. (C) No. 20896 of 2021 dated 16.03.2022, indicate that regularization and renewal of overdraft facilitated, have been accepted by the Bank, and based on the above, orders have been passed.
For brevity, paragraph Nos. 3 and 5 of the judgment in W. P. (C) No. 20896 of 2021 dated 16.03.2022, read thus:
“3. It was submitted on behalf of the respondent-Bank that petitioner committed default in repayment and the overdue amount under the four loans as on date totals to Rs.67 Lakhs. It was further submitted that though proceedings for recovery have been initiated, respondent-Bank is willing to regularise the term loans and also renew the overdraft facility provided the conditions stipulated by them are satisfied. It was also submitted that respondents are willing to accept repayment of the amount in instalments provided a substantial sum is deposited by the petitioner before the end of March, 2022. 5. Having regard to the circumstances of the case and the situation now prevailing, apart from the submissions made as recorded above, I am of the view that the petitioner can be granted an opportunity to repay the overdue amount in '11' instalments and thereafter, if the amount so directed is repaid within the time as directed above, to have the term loan account regularised and the overdraft facility renewed on terms.”
WA:728/2022 -:7:-
It is settled position that if for any reason, facts or submissions, as placed before the court, are not recorded properly, the only course open is to file a review petition, duly supported by an affidavit, and not a separate writ appeal.
That apart, submission of the learned counsel for the appellants is that, in terms of the impugned judgment, two installments as ordered, have already been paid by the 1st respondent. In that way, impugned judgment is also acted upon.
In the light of the above discussion and decisions, we are not inclined to entertain the instant writ appeal. Accordingly, instant writ appeal is dismissed. Dismissal of the writ appeal would not foreclose the right of the appellants to seek review of the judgment, if so advised. S. MANIKUMAR CHIEF JUSTICE SHAJI P. CHALY JUDGE Eb ////// P. A. TO JUDGE
Reproduced from the public record of the Kerala High Court. Verify against the court's own copy before relying on it. Income tax judgments are on bharattax.net.