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HIGH COURT OF KERALA
S.MANIKUMAR, CJ, SHAJI P.CHALY, J
THE BRANCH MANAGER – Appellant
Versus
SAIDALI HAJI N – Respondent
WA/370/2021
Possession - Property - SARFAESI Act Section 13(4) - The court analyzed provisions of the SARFAESI Act regarding possession notices and debtor rights, ultimately reversing an interim order allowing a debtor to regain possession without full payment, emphasizing legal processes over immediate remedies.
Fact of the Case:
The respondent obtained loans and defaulted amidst financial difficulties due to the pandemic. After the bank issued a possession notice, the respondent sought relief through a writ petition allowing installment payments, which led to a subsequent interim application for regaining possession of the property.
Finding of the Court:
The court found that the interim application was not maintainable as it sought a relief not originally provided in the disposed writ petition, highlighting the importance of adhering to the specific prayers made in legal proceedings.
Issues: Did the court err in granting possession to the debtor without full repayment of the debt and without a specific prayer for such relief in the original writ petition?
Ratio Decidendi: The court reiterated that once a writ petition is disposed of, further applications must directly align with the relief sought and cannot introduce new requests that contradict previous judgments.
Final Decision: The interim order granting possession was set aside, and the writ appeal was allowed.
JUDGMENT
Dated this the 22nd day of February 2021 S.MANIKUMAR,CJ Possession notice issued under section 13(4) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 , dated 16.1.2020 has been challenged in W.P.(C) No.617/2021, with the following prayers:
(1) To quash Exhibit P1 possession notice and pass an order staying all further proceedings in pursuant to Exhibit P1 (2) Issue a writ of mandmus directing the appellants, not to take any coercive steps under the provisions of the SARFAESI Act, 2002.
(3) Issue a writ of mandamus directing the appellants to permit the respondent to repay the outstanding amount due in such number of installments as this Hon'ble Court directs.
2. Considering the rival submissions, writ court, by judgment dated 8th January, 2021 in W.P.(C) No.617/2021, ordered thus:
“7. The learned counsel for the Bank at this time submits that the petitioner can be allowed to pay off the total outstanding, which is stated to be Rs.66,55,130/- as on today, along with other charges and interest, in not more than six instalments commencing from 27.01.2021.
8. The learned counsel for the petitioner says that the petitioner is agreeable to the above offer made by the Bank and therefore, that the writ petition may be ordered granting permission to the petitioner to pay off the amount in the manner as afore.
9. In such circumstances, I direct the petitioner to pay off the aforementioned amount in six equal monthly instalments commencing from 27.01.2021, along with applicable charges and interest. It goes without saying that if there is any default in making the payment as directed above, the benefit granted under this judgment would stand vacated and the Bank will be at liberty to recover the entire liability from the petitioner by continuing with the proceedings from the stage it is on this date. I make it clear that the directions in this judgment are peremptory in nature and that the petitioner will have to comply with the same meticulously.
The writ petition is ordered accordingly. ”
4. After the disposal of the writ petition, I.A.No.1 of 2021, has been filed with the following prayers:
“” I am the 2nd appellant and I am swearing this affidavit on behalf of the 1st Appellant also. The appellants has pointed out in the memorandum of appeal that on 10-02.2021 when the writ petition 617/2021 was listed for admission the interlocutory application was not listed and the name of the Counsel who appeared in the writ petition for the bank was not shown and the interim application was disposed of without hearing the counsel for the bank. The copy of the cause list on 10-02-2021 of the honourable single judge is produced as Annexure A4. The same is necessary for a just and proper disposal of the above writ petition and I am filing herewith a separate petition to accept same as an additional document as Annexure A4 in the appeal. The same may kindly be allowed.”
5. Considering the prayer sought for, writ court, vide order dated 10th February, 2021 in I.A.No.1/2021 in W.P.(C) No.617/2021 ordered thus:
“
ORDER
The writ petitioner seeks that the Bank be directed to hand over the keys of the secured asset and to remove the board put up by them, indicating that it has been taken possession of under the provisions of SARFAESI Act.
The learned counsel for the petitioner submits that the Bank is refusing to accede to the afore request made by her client solely because the judgment does not direct them to do so; but that going by its tenor, it is obvious that once the amounts are commenced to be paid in instalments, the secured asset cannot remain in their possession nor can the board be allowed to continue to remain there.
I find some force in the submissions of the petitioner and since no objections have been filed by the Bank against this application, I deem it appropriate to grant the reliefs sought for.
Consequently, if the petitioner has commenced making payment as per the jdugment, the Bank
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