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2016 Supreme(Online)(KER) 19027
HIGH COURT OF KERALA
A.M.SHAFFIQUE, J
SYED ABUTHAHIR P – Appellant
Versus
THE FEDERAL BANK LTD – Respondent
WRIT PETITION (CIVIL) 21453/2016
Compliance with prior court orders is essential, yet willingness to settle may allow courts to defer enforcement actions in similar cases.
Headnote:
SARFAESI - Writ Petition - SARFAESI Act - Section 14 - The court allowed the petitioner to remit overdue payments within a specified timeframe, emphasizing the importance of compliance and the possibility of settlement with the bank after prior non-compliance.
Fact of the Case:
Petitioner approached the court regarding proceedings initiated by the respondent Bank under the SARFAESI Act after failing to comply with earlier court directions to repay overdue amounts.
Finding of the Court:
The court noted the petitioner’s willingness to settle the liability and permitted deferred possession of the secured assets contingent upon payment of the owed amount.
Issues: Whether the writ petition was maintainable given prior non-compliance with directions to pay overdue amounts and the implications of SARFAESI proceedings.
Ratio Decidendi: The willingness to pay and the initiation of a one-time settlement with the bank were sufficient to allow the writ petition, balancing rights and obligations under SARFAESI.
Final Decision: The writ petition is disposed of, allowing the petitioner to pay in installments to avoid immediate possession of the premises.
J U D G M E N T
Petitioner has approached this Court when proceedings had been taken by the respondent Bank under Section 14 of the SARFAESI Act. The Chief Judicial Magistrate had appointed an Advocate Commissioner and notice had been issued by Advocate Commissioner calling upon the petitioner to surrender possession of the premises in question.
2. In fact, the petitioner had approached this Court earlier by filing W.P.(C) No. 20272/2015, which was disposed of by judgment dated 23.07.2015, by which the petitioner was granted time to repay the overdue amount and also permitting the Bank to regularize the housing loan account if the petitioner pays the overdue amount. It is stated that on account of certain financial difficulties the petitioner was unable to comply with the directions issued by this Court. 3. Learned counsel for the respondent Bank submitted that the petitioner having not complied with the directions issued in W.P. (C) No.20272/2015, there is no reason why this Court should entertain the present writ petition.
4. Learned counsel for the petitioner, however, submits that this writ petition having been filed on separate cause of action, the writ petition is maintainable. When the above writ petition came up for admission, notice on admission was ordered and a direction was given to the Advocate Commissioner to defer taking possession of the secures assets on condition of the petitioner remitting Rs.10,00,000/- within two weeks.
5. It is submitted that the petitioner had remitted the said amount within the aforesaid period on 05.07.2016. Taking into consideration the fact that the petitioner had expressed his willingness to settle the liability, I am of the view that some concession has to be extended despite the fact that the petitioner did not comply with the earlier direction in W.P.
(C) No.20272/2015.
6. It is submitted that the balance amount will come to Rs.8,71,000/- as on 07.07.2016.
7. Learned counsel for the petitioner also submits that petitioner is trying to arrive at a one time settlement with the respondent Bank. Nothing prevents the petitioner from approaching the Bank for any such settlement.
8. Having regard to the aforesaid factual situation this writ petition is disposed of as under:
(i) The petitioner shall pay the entire balance amount due to the respondent Bank with accrued interest and other charges within a period of three months from the date of receipt of a copy of this judgment in three equal monthly instalments starting from 06.09.2016.
(ii) The Advocate Commissioner shall defer taking possession of the premises if the petitioner complies with the aforesaid direction, failing which it shall be open for the Advocate Commissioner to take possession of the premises and the Bank shall take further proceedings in accordance with law.
This judgment does not preclude the petitioner from approaching the respondent Bank for one time settlement, if any.
A.M.SHAFFIQUE JUDGE DMR/-
