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2022 Supreme(Online)(KER) 38593
HIGH COURT OF KERALA
GOPINATH P, J
ARUNODAYAM @UDAYA – Appellant
Versus
THE BRANCH MANAGER – Respondent
WP(C)/41068/2022
S.SREEKUMAR (KOLLAM), K.VIJAYAN, NAMITHA RAJESH, D P RENU (SC)
Courts can modify repayment terms under the SARFAESI Act based on equitable considerations of personal hardship.
Headnote:
SARFAESI - Recovery Proceedings - SARFAESI Act - Sections related to loan recovery and payment structure. - The court granted the petitioner an extended installment plan to repay overdue amounts, emphasizing fairness in light of personal hardship.
Fact of the Case:
The petitioner challenged SARFAESI Act proceedings initiated by a bank due to loan repayment default, which occurred after the petitioner's son, for whom she incurred substantial medical expenses, passed away.
Finding of the Court:
The court determined that the petitioner could repay the owed amount in 20 installments instead of 10, finding the circumstances warranted a more lenient repayment plan.
Issues: Whether the court should allow the petitioner a longer repayment period for the overdue loan amounts under the SARFAESI Act due to her personal circumstances.
Ratio Decidendi: The court found that, considering the petitioner's tragic personal circumstances, extending the repayment period provided necessary relief and ensured fair treatment under the law.
Final Decision: The bank must accept repayment in 20 installments, halting coercive actions.
JUDGMENT
The petitioner has approached this Court challenging proceedings under the SARFAESI Act which have been initiated by the bank for recovery of the amounts due from the petitioner. 2. The learned counsel for the petitioner submits that the petitioner is a fisher-woman by profession. It is submitted that petitioner's son was afflicted with cancer and huge amounts had to be spent for his treatment. It is submitted that the son of the petitioner died on 14.09.2022. It is submitted that the default occurred only on account of the above and the petitioner may be given a liberty of repaying the amount in instalments.
3. It was submitted on behalf of the respondent bank that the petitioner committed default in repayment of the business loan and the overdue amount as on 20.12.2022 is Rs.12,24,643/- (Rupees twelve lakhs twenty four thousand six hundred and forty three only). The learned counsel appearing for the respondent Bank points out that the loan was availed in the year 2017. It is submitted that the account became NPA on 20.06.2018. It is submitted that the term of the loan is to expire on 20.07.2024 and while the Bank has no objection in granting reasonable instalments to the petitioner, the number of instalments may be limited to 10.
4. I have heard the learned counsel for the petitioner as well as the learned counsel for the respondents.
5. Having heard the learned counsel for the petitioner and the learned counsel for the respondent Bank and having regard to the facts recorded herein above, I am of the opinion that the petitioner can be granted 20 instalments to clear the overdue amounts along with regular EMI.
6. Accordingly, there will be a direction to the respondent bank to accept repayment of the entire overdue amount of Rs.12,24,643/-(Rupees twelve lakhs twenty four thousand six hundred and forty three only) along with any accrued interest, costs and charges from the petitioner and regularise the loan account of the petitioner on the following conditions:
i. The overdue amount of Rs.12,24,643/-(Rupees twelve lakhs twenty four thousand six hundred and forty three only) along with any accrued interest, costs and charges shall be repaid in 20 equated monthly instalments.
ii. The first instalment shall be paid on or before 15.01.2023 and the subsequent instalments shall be paid on or before the 15th day of every succeeding month.
iii. Petitioner shall continue to pay the regular EMI’s along with the instalments directed above.
iv. In the event of default of any one instalment, the respondent bank shall be entitled to proceed in accordance with law.
v. In order to enable the petitioner to repay the entire amounts, all coercive proceedings shall be kept in abeyance.
The writ petition is disposed of as above.
Sd/-
GOPINATH P.
JUDGE
APPENDIX OF WP(C) 41068/2022 PETITIONER EXHIBITS Exhibit-P1 THE TRUE COPY OF THE DEMAND NOTICE ISSUED BY THE 1ST RESPONDENT DATED
16.04.2019 Exhibit-P2 THE TRUE COPY OF THE POSSESSION NOTICE DATED 28.11.2022 ISSUED BY THE ADVOCATE COMMISSIONER Exhibit- P3 THE TRUE COPY OF THE REPRESENTATION DATED 01.11.2022 GIVEN TO THE 1ST RESPONDENT Exhibit-P4 TRUE COPY OF THE DEATH CERTIFICATE OF PETITIONER'S SON
