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2022 Supreme(Online)(KER) 48725
HIGH COURT OF KERALA
GOPINATH P, J
SHEEBA KURIAKOSE – Appellant
Versus
THE AUTHORISED OFFICER – Respondent
WP(C)/26017/2021
LIZA P.CHERIAN, C.AJITH KUMAR
The court can defer enforcement actions based on the debtor's circumstances while preserving creditor rights in security enforcement.
Headnote:
Securitisation - Proceedings under SARFAESI Act - Sections 13, 14 - The court deferred the physical possession of the petitioner's residential property mortgaged to the bank, allowing time for the petitioner to settle liabilities while enabling the bank to initiate sale proceedings.
Fact of the Case:
The petitioner challenges proceedings under the SARFAESI Act concerning loans secured by her residential property, highlighting her medical condition and risk of hardship if possession is taken.
Finding of the Court:
The court acknowledged the petitioner's medical condition and the substantial debt owed, suggesting a deferment of possession subject to the bank's right to sell the property and obtain possession following the sale.
Issues: Whether the taking of physical possession of the petitioner's residential property should be deferred given her medical condition and the ongoing settlement discussions with the bank.
Ratio Decidendi: The court found a balance between the bank's right to enforce the loan security and the petitioner's current health and intention to resolve liabilities, permitting a delay in possession pending sale of the property.
Final Decision: Writ petition disposed of, deferring possession until sale of the property under SARFAESI Act.
J U D G M E N T
The petitioner has approached this Court being aggrieved by proceedings initiated against the petitioner under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act (SARFAESI Act) in respect of various loans availed by the petitioner.
2. The learned Counsel appearing for the petitioner submits that the petitioner is a Cancer patient and she will be put to great difficulties if the physical possession of the residential house of the petitioner which is mortgaged to the Bank is taken. It is submitted that the petitioner will attempt to settle the entire liability of the respondent Bank and that some breathing time may be granted to the petitioner.
3. The learned counsel appearing for the 1st respondent Bank has pointed out the circumstances of the case and states that as on date, the liability due from the petitioner in respect of all the facilities availed by the petitioner and her husband for which the residential house of the petitioner is offered as security is approximately Rs.17,00,00,000/- (Rupees Seventeen Crores Only).
4. When this matter is came up for consideration before this Court on 01.07.2022, after hearing the learned counsel appearing for the petitioner and the learned counsel appearing for the respondent Bank at considerable length, I had suggested to the learned counsel for the 1st respondent Bank that considering the medical condition of the petitioner, the taking of physical possession of the residential property of the petitioner can be deferred subject to the condition that the Bank will be free to bring the said property to sale and as soon as the sale proceedings are finalised, it will be open to the respondent Bank to take vacant possession of the residential building and adjoining land if necessary with police assistance. The learned counsel appearing for the petitioner has no objection to the aforesaid course of action, subject however to the right of the petitioner to seek settlement of liabilities with the respondent Bank.
5. Taking note of the above facts and circumstances, the Circle Inspector of Police, Irinjalakkuda is suo motu impleaded as additional 2nd respondent to the above writ petition. The writ petition is disposed of directing that taking of physical possession of the residential premises of the petitioner shall be deferred till the property is sold by the Bank under the provisions of the SARFAESI Act or by virtue of orders obtained from the Debts Recovery Tribunal, in the pending original application. Once the property is sold by the respondent Bank and a request is made for handing over vacant possession of the residential building, the petitioner or any person in occupation of the building shall hand over the vacant possession, failing which it will be open to the authorized officer of the respondent Bank to seek Police assistance for obtaining vacant possession. If such a request is made along with a copy of this judgment to the additional 2nd respondent, he shall ensure that necessary Police assistance is offered to the respondent Bank to obtain vacant possession of the residential house of the petitioner.
This writ petition is disposed of as above.
Sd/-
GOPINATH P.
JUDGE ats APPENDIX OF WP(C) 26017/2021 PETITIONER EXHIBITS EXHIBIT P1 TRUE COPY OF THE PAYMENT PROOFS.
EXHIBIT P2 TRUE COPY OF THE LETTER ISSUED BY THE PETITIONER 9.11.2021 EXHIBIT P3 TRUE COPY OF THE ORDER OF CJM in CRL.M.P.
5788/2017 DATED 4.1.2018 EXHIBIT P4 THE TRUE COPY OF THE PROCEEDINGS OF CJM IN CRL.MP 5788/2017 EXHIBIT P5 THE TRUE COPY OF CRL.M.P. 5788/2017 FILED BY THE BANK DATED 9.11.2017 EXHIBIT P6 TRUE COPY OF THE JUDGMENT IN WPC
33268/2019 DATED 17.1.2020 EXHIBIT P7 THE TRUE COPY OF THE MEDICAL PROOF DATED
25.9.2021 EXHIBIT P8 THE TRUE COPY OF LETTER ISSUED FROM THE BANK DATED 6.11.2019 EXHIBIT P9 TRUE COPY OF THE PAYMENT RECEIPTS.
EXHIBIT P9(A) THE TRUE COPY OF THE VALUATION REPORTS DATED 4.9.21.
EXHIBIT P9(B) THE TRUE COPY OF THE VALUATION REPORTS DATED 18
