Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR.JUSTICE N.NAGARESH THURSDAY, THE 1ST DAY OF FEBRUARY 2024 / 12TH MAGHA, 1945 WP(C) NO. 3166 OF 2024 PETITIONER: MONI M AGED 65 YEARS S/O MUTHU NAYAGAM, TC 20/1806(5), MAHESH NIVAS, ALUMTHARA LANE, THAMALAM, KRAMANA P.O, THIRUVANANTHAPURAM, PIN - 695002 BY ADVS. G.RANJU MOHAN M.SANTHI (K/868/2011) PYARIN B. KURUVITHADAM THEERTHA NAIR A.P. RESPONDENTS: 1 AUTHORISED OFIICER ICICI HOME FINANCE COMPANY LTD THIRUVANANTHAPURAM, PIN - 695002 2 GOPIN V GOPL ADVOCATE COMMISSIONER, ROOM NO. 303, VYSHNAVA BUILDING, VANCHIYOOR.P.O, THIRUVANANTHAPURAM, PIN - 695035 BY ADVS. SREEKALA KRISHNADAS C.VIVEK(K/000304/1999) BONIFUS P.A.(K/2539/2022) SREESHMA P.R.(K/002169/2023) RAKHI RAMACHANDRAN(K/000990/2023) THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 01.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
JUDGMENT
Dated this the 1st day of February, 2024 The petitioner has approached this Court aggrieved by the coercive proceedings for recovery of financial advance made by the ICICI Home Finance Limited to the petitioner, invoking the provisions of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002.
2. The 1st respondent paid ₹17.5 lakhs to the
petitioner as Housing Loan in the year 2021. The petitioner states that though the petitioner made remittances promptly during the initial repayment period of the financial advance, he could not pay the repayment installments promptly later due to huge financial constraints. The repayment of loan fell into arrears. It happened due to reasons beyond the control of the petitioner.
3. Though the petitioner requested the 1st respondent
to permit the petitioner to repay the overdue amounts in easy monthly installments, the Bank authorities were not yielding. The authorities, instead started coercive proceedings invoking the provisions of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 and the Security Interest (Enforcement) Rules, 2002 and issued Ext. P1 notice.
4. The petitioner states that he is still in a position to
clear the overdue amounts towards the loan, if sufficient time is given to clear the dues in easy monthly installments. If the 1st respondent is permitted to continue with the coercive proceedings and auction the secured assets provided by the petitioner, he will be put to untold hardship and loss.
5. Standing Counsel entered appearance on behalf of
the 1st respondent and denied all the statements made by the petitioner. On behalf of the 1st respondent, it is submitted that the loan was given to the petitioner in the year 2021. The petitioner committed default in repaying the loan.
6. The 1st respondent repeatedly reminded the
petitioner and required him to clear the dues. The petitioner deliberately omitted to do so. In the circumstances, the 1st respondent had no other go than to proceed against the petitioner invoking the provisions of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002. The impugned Ext.P1 notice was
issued in these circumstances. The petitioner has not advanced any legal reasons to thwart the coercive proceedings initiated by the 1st respondent.
7. The Standing Counsel, however, submitted that if
the petitioner is ready and willing to make a substantial payment soon and remit the balance overdue amount immediately thereafter, a short breathing time can be granted to the petitioner to clear the dues. The Standing Counsel submitted that the outstanding amount due to the respondent from the petitioner as on 01.12.2023 is ₹18,81,435/- and the overdue amount as on 01.12.2023 is ₹4,43,332/-.
8. I have heard the counsel for the petitioner and the Standing Counsel representing the respondent.
9. The specific case of the petitioner is that the
petitioner has been making the repayment and maintaining the loan account initially. The default in repayment of the loan occurred lately due to reasons beyond the control of the petitioner. The petitioner has provided substantial security which will safeguard the interest of the respondent.
10. In the facts and circumstances of the case, I am inclined to dispose of the writ petition giving a short and reasonable time to the petitioner to clear off the liability.
11. The writ petition is therefore disposed of with the following directions:
(i) The petitioner shall remit the overdue
amount of ₹4,43,332/- in 12 consecutive and equal monthly installments along with accruing interest and other administrative charges, if any. First of such installments shall be paid on or before 01.03.2024.
(ii) If the petitioner commits single default in making payments as directed above, the respondent will be at liberty to continue with the coercive proceedings against the petitioner in accordance with law.
(iii) The petitioner shall also pay current EMIs along with the aforesaid payments.
(iv) If the petitioner makes payments as directed above, coercive proceedings, if any, against the petitioner shall stand deferred. Sd/- N.NAGARESH JUDGE
hmh APPENDIX OF WP(C) 3166/2024 PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE ADVOCATE COMMISSIONER NOTICE RECEIVED BY THE PETITIONER DATED 01.01.2024 Exhibit P2 TRUE COPY OF THE ORDER OF THE HON'BLE CHIEF JUDICIAL MAGISTRATE COURT, THIRUVANANTHAPURAM IN M.C.NO.824/2023 APPOINTING ADVOCATE COMMISSIONER DATED 21.11.2023