Antony Sunny vs. The Union Of INDIA - Kerala High Court, 22 August 2019

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE SHAJI P.CHALY THUR AY, THE 22ND DAY OF AUGUST 2019 / 31ST SRAVANA, 1941 WP(C).No.35520 OF 2018(L) PETITIONERS: 1 ANTONY SUNNY, AGED 36 YEARS S/O SUNNY VELLARA, XIII/426 KMC MATHA MATERIALS T.B.ROAD, KOTTAYAM, KERALA-686039. 2 VELLARA ANTONY SUNNY, AGED 66 YEARS S/O.ANTONY VELLARA, VELLARA, T.B.ROAD, KOTTAYAM, KERALA-686039. 3 MERCY PULIKKOTTIL VARGHESE, AGED 56 YEARS X/111/180, VELLARA, GP ROAD, VYLATHUR, THRISSUR, KERALA - 679563. BY ADVS. SRI.P.SANJAY SMT.A.PARVATHI MENON RESPONDENTS: 1 THE UNION OF INDIA, REPRESENTED BY THE SECRETARY DEPARTMENT OF FINANCIAL SERVICES, MINISTRY OF FINANCE, 3RD FLOOR JEEVANDEEP BUILDING, SANSAD MARG, NEW DELHI-110001. 2 THE STATE OF KERALA, REPRESENTED BY THE PRINCIPAL SECRETARY OF FINANCE, MINISTRY OF FINANCE, SECRETARIAT, BUILDING, THIRUVANANTHAPURAM-695001. 3 THE DISTRICT COLLECTOR, THRISSUR DISTRICT, 1ST FLOOR, CIVIL STATION, CIVIL LINES ROAD, AYYANTHOLE, THRISSUR, PIN CODE-680003. WP(C).No.35520 OF 2018(L) 2 4 SLBC REPRESENTED BY ITS CONVENER AND GENERAL MANAGER, SLBC CELL, CANARA BANK, CIRCLE OFFICE, CANARA BANK BUILDING, MG ROAD, THIRUVANANTHAPURAM-695001. 5 THE RESERVE BANK OF INDIA, SANSAD MARG, NEW DELHI-110001. 6 HDFC BANK LTD., GR FLR., SUHARSHA TOWERS, THRISSUR TO SHORNUR RD., THRISSUR, KERALA- 680001. 7 ICICI BANK, DELMA COMPLEX, SHORNUR ROAD, OPPOSITE CO-OPERATIVE HOSPITAL, THRISSUR, KERALA - 680001. 8 AXIS BANK LTD., CITY CENTRE, XXV/1130, ROUND WEST, THRISSUR - 680001. 9 YES BANK LTD., GROUND FLOOR, CENTRE POINT, 9/44/1, M.G.ROAD, THRISSUR, KERALA, PIN - 680004. 10 TATA CAPITAL LTD., KURUPPAM RD., MARAR ROAD AREA, THEKKINKADU MAIDAN, THRISSUR, KERALA - 680001.(DELETE). RESPONDENTS R10 AND R12 ARE DELETED FROM PARTY ARRAY AS PER ORDER DATE 19.07.2019 IN IA 7/2019. 11 HDB FINANCIAL SERVICES, 14/488/26/, 2ND FLOOR, SUNCITY, KOORKENCHERRY, TRICHUR-680007. 12 ADDL.R12: NATIONAL HOUSING BANK HAVING ITS REGISTERED OFFICE AT CORE 5-A, INDIA HABITAT CENTRE, LODHI ROAD, NEW DELHI-110003, REP. BY THE MANAGING DIRECTOR AND CHIEF EXECUTIVE OFFICER MRS.DAKSHITA DAS. (ADDL.R12 IS IMPLEADED AS PER ORDER DATED 03/12/2018 IN IA.NO.02/2018). (DELETED) RESPONDENTS R10 AND R12 ARE DELETED FROM PARTY ARRAY AS PER ORDER DATED 19.07.2019 IN IA 7/2019. R1 BY SRI.KRISHNADAS P.NAIR, CGC R4 BY ADV. DR.PAULY MATHEW MURICKEN R6 BY SRI.T.RAJESH, SC, HDFC BANK LTD. R7 BY ADV. SRI.LAL K.JOSEPH R7 BY ADV. SRI.A.A.ZIYAD RAHMAN

WP(C).No.35520 OF 2018(L) 3 R8 BY ADV. SRI.P.PAULOCHAN ANTONY R9 BY ADV. SRI.T.RAJESH R10 BY ADV. SRI.P.V.VINOD (BENGALAM) R10 BY ADV. SMT.D.REETHA R12 BY ADV. SRI.E.M.MURUGAN R2 & R3 BY SMT.PRINCY XAVIER, GOVERNMENT PLEADER THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 22.08.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

WP(C).No.35520 OF 2018(L) 4 J U D G M E N T

This writ petition is filed by the petitioners, who have availed loans from the respondent bank, seeking to quash Exts.P9 to P11 declining the benefits of moratorium declared under Exts.P4, P4(a) and P4(b) by the State Level Bankers' Committee and the convenor of the Bank and for other related and consequential reliefs. Brief material facts for the disposal of the writ petition are as follows;

According to the petitioners, they are owners of MSME business establishments and were severally affected by the unprecedented floods in Kerala during the year 2018. The Central and State Government announced several measures to provide reliefs to the people and industry including compensation, moratorium of loans, granting of fresh credit, fast track insurance claim settlements etc., however, many of the relief measures have not reached to the petitioners owing to the lethargy on the part of the banking community. Petitioners, despite being eligible for the moratorium on MSME

WP(C).No.35520 OF 2018(L) 5 loans announced by the Government, they are being denied of the same by the Banking Body viz., the State Level Banking Committee. The said Committee has approved in writing that, the moratorium is to be extended to all MSMEs and recovery processes is to be restrained but no action is taken to deliver the said relief by the member banks. When the petitioners requested the reliefs for the moratorium, they had to face severe dilatory tactics, evasive answers coupled with aggressive recovery measures initiated. It is thus seeking appropriate directions this writ petition is filed.

During the pendency of this writ petition, on the basis of I.A.No.7/2019 filed by the petitioners, respondents Nos. 10 & 12 were deleted from the party array since according to the petitioners, they have provided necessary relief to the petitioners. Case projected by the petitioners is that, petitioners are MSME establishments entitled to secure the reliefs declared as per Ext.P4 by the State Level Bankers' Committee, Kerala dated 3.9.2018. However, the status of the petitioners as

WP(C).No.35520 OF 2018(L) 6 MSME is denied by the respondent bank as well as it is pointed out in the counter affidavit filed by them that, the loans availed by the petitioners are of commercial nature and such loans are not excluded from payment under Ext.P4, Ext.P4(a) an P(b). It is also pointed out that the arrears prior to the flood is not excluded as per the decision taken by the Bankers' Committee and that apart petitioners are not MSME units, and the loans are availed by the petitioners individually without the juncture of any firms. The sum and substance of the contention advanced by the respondents is that, petitioners are not entitled to get any benefits of the declaration made by the Bankers' Committee consequent to the flood situation, 2018. 4. I have heard learned counsel for petitioners, learned counsel appearing for respondents and perused the pleadings and documents on record.

It is an admitted fact that, requests were made by the petitioners before all the banks seeking extension of benefits of Exts.P4, P4(a) and P4(b) and the same were not considered except the 9th

WP(C).No.35520 OF 2018(L) 7 respondent i.e., the Axis bank Limited. City Centre, Round West, Thrissur. Eighth respondent

has declined the request made by the petitioners. According to the 8th respondent, the loans availed by the petitioners are all commercial loans and therefore, they are not entitled to any benefits as is declared by the Bankers' Committee, Kerala. So far

as other

banks

are concerned, request/representation submitted by the petitioners were not considered and Ext.P7 series of representations are pending before other banks.

In my considered opinion, the writ petition can be disposed of with appropriate directions, since the applications are pending before the banks other than respondent No.

Therefore, after evaluating the situations I am of the view, petitioners can be given an opportunity to produce all documents before the banks in respect of the claims raised by the petitioners in this writ petition and the banks can be directed to finalise the issue within the time frame. Therefore, the

WP(C).No.35520 OF 2018(L) 8 applications pending before respondents 5 to 7 and 9 submitted by the petitioners are directed to be disposed of at the earliest possible time and at any rate within a month from the date of receipt of a copy of this judgment. I have gone through Ext.P9 decision taken by the 8th respondent and find that, contentious issues raised by the petitioners that, petitioners are entitled to get the benefits of declaration made in Ext.P4, P4(a) and P4(b) by the Bankers' Committee, Kerala, was not considered by the 8th respondent, since nothing is reflected in Ext.P9 to arrive at any finding in that regard.

In that view of the matter, I quash Ext.P9 and direct the 8th respondent also to re-consider the application submitted by the petitioners within a month. There will be a direction to the petitioners to produce all the documents that are required to be considered by the aforesaid banks at the earliest possible time and at any rate within ten days from the date of receipt of a copy of this judgment. I also make it clear that, the 4th respondent i.e., SLBC represented by its convenor

WP(C).No.35520 OF 2018(L) 9 bank will be at liberty to convene a joint meeting of the petitioners and the Banks, and consider the applications submitted by the petitioners taking into account all the documents, and the stipulations and declaration contained under Exts.P4, P4(a) and P4(b), within the time limit specified above, instead of consideration of the applications independently. Till such time the interim order granted by this court against coercive action shall continue to be in force. Writ petition is allowed to the above extent. SHAJI P.CHALY Smv 26.8.2019 JUDGE

WP(C).No.35520 OF 2018(L) 10 APPENDIX PETITIONER'S EXHIBITS: EXHIBIT P1OF THE GST REGISTRATION CERTIFICATES ARE COLLECTIVELY DATED 4.3.2018, 21.9.2017 AND 21.9.2017. EXHIBIT P2OF SOME OF THE NEWSPAPER ARTICLES ARE TOGETHER WITH COLLECTIVELY DATED 23, 30 AND 31ST AUG. 2018. EXHIBIT P3OF THE TWEET DATED 29.8.2018. EXHIBIT P4OF THE MINUTES OF THE MEETING DATED 3.9.2018. EXHIBIT P4 AOF THE MINUTES OF THE MEETING DATED 14.9.2018. EXHIBIT P4 BOF THE MINUTES OF THE MEETING DATED 21.8.2018. EXHIBIT P5OF THE FAQ SECTION GIVEN ON THE 5TH RESPONDENT'S WEBSITE THAT CARRIES THE DEFINITION OF MSME DATED 28.3.2018. EXHIBIT P6OF THE LIST OF AFFECTED VILLAGES. EXHIBIT P7OF THE REPRESENTATIONS DATED 1.10.2018 GIVEN TO RESPONDENTS 6. EXHIBIT P7 AOF THE REPRESENTATIONS DATED 1.10.2018 GIVEN TO RESPONDENTS 8. EXHIBIT P7 BOF THE REPRESENTATIONS DATED 1.10.2018 GIVEN TO RESPONDENTS 10. EXHIBIT P7 COF THE REPRESENTATIONS DATED 1.10.2018 GIVEN TO RESPONDENTS 7. EXHIBIT P7 DOF THE REPRESENTATIONS DATED 1.10.2018 GIVEN TO RESPONDENTS 9. EXHIBIT P7 EOF THE REPRESENTATIONS DATED 1.10.2018 GIVEN TO RESPONDENTS 11. EXHIBIT P8OF A POLICE COMPLAINT FILED BY THE 1ST PETITIONER AGAINST THE HDFC BANK OFFICIALS FOR THREATENING THE 2ND AND 3RD PETITIONER DATED 1.10.2018. WP(C).No.35520 OF 2018(L) 11 EXHIBIT P9OF THE LETTER FROM AXIS BANK STATING THAT MORATORIUM CANNOT BE EXTENDED TO COMMERCIAL VEHICLE LOANS DATED 23.10.2018. EXHIBIT P10OF THE FEEDBACK RECEIVED FROM HDFC BANK DATED 8.10.2018. EXHIBIT P11OF LETTER RECEIVED FROM SUNDARAM FINANCE RESCHEDULING THE LOAN DATED 11.10.2018 TO 31.5.2018 EXHIBIT P12OF LETTER DATED 15.10.2018. EXHIBIT P13OF THE FAQ FROM THE 5 RESPONDENTS' WEBSITE WHAT CONSTITUTES PRIORITY SECTOR. EXHIBIT P14OF THE EMAIL COMMUNICATION DATED 07.11.2018 WITH THE 4TH RESPONDENT. EXHIBIT P15OF THE ORDER IN WP(c) NO. 35520/2018 DATED 14.05.2019. EXHIBIT P16OF THE COMMUNICATION WITH THE MSMED DEPARTMENT DATED 11.06.2019 AND 12.06.2019. EXHIBIT P17OF THE UDYOG AADHAR MEMORANDUM OF THE PETITIONER'S FIRMS. EXHIBIT P18OF THE INCOME TAX RETURN ACKNOWLEDGMENT FOR 2018-19. EXHIBIT P19OF THE RBI/FIDD/2017-2018/56 MASTER DIRECTION, DATED 24.07.2017. EXHIBIT P20OF THE LETTER RBI/2017-18/135 OF THE 5TH RESPONDENT DATED 01.03.2018. EXHIBIT P21OF THE CERTIFIED STATEMENT DESCRIBING CAPITAL INVESTMENT MADE IN THE PETITIONER'S FIRM DATED 10-07-2019. EXHIBIT P22OF THE SME LOAN SANCTION LETTER REF NO.AXISB/SME CENTRE/S-4/198/490/2017-18 DATED 30.12.2017 AND 22.02.2018 OF 8TH RESPONDENT. EXHIBIT P23OF THE SECRETARY MSMED DATED 24.11.2014. EXHIBIT P24OF THE LOAN SANCTION LETTER OF

WP(C).No.35520 OF 2018(L) 12 9TH RESPONDENT FOR THE YEAR 2017. EXHIBIT P-24(a)OF THE LOAN SANCTION LETTER OF 9TH RESPONDENT FOR THE YEAR 2018. EXHIBIT P25OF THE SANCTION LETTER OF INDUSIND BANK DATED 11-06-2018 ALONG WITH THE CIBIL STATEMENT USED FOR THEIR INTERNAL CREDIT ASSESSMENT PURPOSES. EXHIBIT P26OF THE STATEMENT SHOWING REPAYMENTS MADE INTO LOAN ACCOUNTS POST SEPTEMBER 2018. EXHIBIT P27OF THE SANCTION LETTERS ISSUED BY THE 10TH RESPONDENT GRANTING THE MORATORIUM DATED 31.05.2019. RESPONDENT'S EXHIBITS: EXHIBIT R4(A) TRUE PHOTOCOPY OF THE MASTER DIRECTION RESERVE BANK OF INDIA (RELIEF MEASURES BY BANKS IN AREAS AFFECTED BY NATURAL CALAMITIES)DIRECTIONS,DATED 03.07.2017 EXHIBIT R4(B) TRUE PHOTOCOPY OF THE DECISIONS TAKEN IN THE MEETING OF THE SLBC SUB COMMITTEE ON NATURAL CALAMITY (2018) HELD ON 13.09.2018 EXHIBIT R4(C) TRUE PHOTOCOPY OF THE DECISIONS TAKEN BY THE SLBC SUB COMMITTEE ON NATURAL CALAMITY (2018) HELD ON 15.10.2018 EXHIBIT R4(D) TRUE PHOTOCOPY OF THE DECISIONS TAKEN BY THE SLBC SUB COMMITTEE ON NATURAL CALAMITY (2018)HELD ON 15.11.2018 EXHIBIT R7(A)OF THE EXCEL SHEET REVEALING THE PRINCIPAL OUTSTANDING, EMI, 1ST BOUNCE AND THE EMI DUES. EXHIBIT R6(1)A TO R6(1)Z THEOF THE LOAN AGREEMENT PERTAINING TO COMMERCIAL VEHICLE LOANS AVAILED BY THE INDIVIDUALS. EXHIBIT R6(2)A TO R6(2)Z AND R6(2)A TO R6(2)A Z AND R6(2)B TO R6(2)B-EOF THE STATEMENT OF ACCOUNTS OF LOAN TRANSACTIONS AVAILED BY THE PETITIONERS.