Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR.JUSTICE N.NAGARESH FRIDAY, THE 1ST DAY OF DECEMBER 2023 / 10TH AGRAHAYANA, 1945 WP(C) NO. 39425 OF 2023 PETITIONER: N.A.ISSAC AGED 70 YEARS, NEDUMPILLIL HOUSE, EDAYAR PO,KOOTHATTUKULAM, ERNAKULAM, PIN - 686 662. BY ADV ABRAHAM JOHN RESPONDENTS: 1 THE CHIEF MANAGER AND AUTHORISED OFFICER, THE SOUTH INDIAN BANK LID , REGIONAL OFFICE,ERNAKULAM, PIN - 682 039. 2 THE BRANCH MANAGER THE SOUTH INDIAN BANK LID ,KADAVANTHARA, KOCHI, PIN - 682 020. 3 THE SOUTH INDIAN BANK LTD REGISTERED OFFOCE AT SIB HOUSE , T.B ROAD,THRISSUR REP .BY CHAIRMAN, PIN - 680 001. BY ADV MOHAN JACOB GEORGE THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 01.12.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: :2:
N. NAGARESH, J.
````````````````````````````````````````````````````````````` W.P.(C) No.39425 of 2023 ````````````````````````````````````````````````````````````` Dated this the 1st day of December, 2023
JUDGMENT
The petitioner, who is a guarantor for an overdraft
facility granted to M/s.Nedumpillil Financial Company Limited, is aggrieved by the denial of the respondents to reschedule the OTS facility granted to the petitioner in such a way to start payment of instalments on 25.04.2024 and to continue to pay the subsequent instalments on the same day during the subsequent months till the liability is discharged.
2. The petitioner states that he is one of the directors
of M/s.Nedumpillil Financial Company Limited. The Company availed an overdraft facility from the 3rd respondent-Bank. Now, an amount of ₹9,63,39,442.90 is due to the respondents :3: as on 14.07.2023. The petitioner was one of the guarantor to the transaction and has mortgaged his immovable properties in addition to the hypothecation of the entire receivables of the finance company.
3. The petitioner states that on 15.07.2023, a notice
was issued to the borrower and guarantors demanding the entire balance amount within 60 days. Ext.P1 is the Section 13(2) notice. The petitioner's immovable properties have been included in Ext.P1 notice. The petitioner states that the respondents can very well proceed against the receivables of the company which are mortgaged with the Bank. The petitioner's wife is a Cancer patient. On 26.10.2023, possession notice of four items of immovable properties were issued as per Ext.P2.
4. The petitioner states that the petitioner was granted an OTS facility to pay ₹825 lakhs. The first instalment of ₹82.5 lakhs was to be paid on 25.11.2023. The petitioner has requested to postpone the first instalment to 25.04.2024 instead of 25.11.2023. Without rescheduling the OTS :4: payment, if the respondents proceed against the residential property of the petitioner, it will cause grave prejudice to the petitioner.
5. Standing Counsel entered appearance on behalf of
the Bank and resisted the writ petition. The Standing Counsel submitted that as on date, more than ₹9 Crores is payable by the Company and the guarantors. The prayer made by the
petitioner to reschedule the OTS is misconceived. The respondents have not extended any OTS facility to the petitioner. The petitioner's application for OTS stands rejected by a decision of the Board of Directors of the Bank. A writ petition under Article 226 of the Constitution of India is not maintainable against the Bank.
6. Heard.
7. The prayer of the petitioner is to reschedule the OTS payment sanctioned by the respondents. The petitioner based his case on Ext.P4 document. In Ext.P4, the following OTS proposal has been made. :5:
Payment date Amount to be remitted 25.11.2023 : ₹82.50 lakhs 25.12.2023 : ₹165.00 lakhs 25.01.2024 : ₹165.00 lakhs 25.02.2024 : ₹165.00 lakhs 25.03.2024 : ₹247.50 lakhs Total : ₹825.00 lakhs
8. The respondents would submit that the above was
a request for OTS made by the petitioner. Even before finalising the OTS, the petitioner approached the Bank for rescheduling the said proposal. The Board of Directors of the Bank considered the proposal and decided to reject the same.
9. In the facts of the case, since there is no One Time Settlement arrived at consensus ad idem between the petitioner and the respondents, the reliefs prayed for by the petitioner cannot be granted.
The writ petition is therefore dismissed. Sd/- N. NAGARESH, JUDGE aks/28.11.2023 :6: APPENDIX OF WP(C) 39425/2023 PETITIONER'S EXHIBITS Exhibit 1 A TRUE COPY OF THE NOTICE DATED 15.7.2023 IS PRODUCED HEREWITH MARKED AS EXHIBIT P1. Exhibit 2 THE COPY OF THE POSSESSION NOTICE DATED 26.10.2023 IS PRODUCED HEREWITH MARKED AS EXHIBIT P2. Exhibit 3 THE TRUE COPY OF THE LETTER DATED 30.10.2023 REQUESTING TO GRANT OTS FACILITY IS PRODUCED HEREWITH AS EXHIBIT P3. Exhibit 4 A COPY OF THE LETTER ISSUED BY THE 1ST RESPONDENT TO THE 2ND RESPONDENT DATED NIL IS PRODUCED HEREWITH MARKED AS EXHIBIT P4. Exhibit 5 A TRUE COPY OF THE MEDICAL CERTIFICATE
ISSUED BY THE HOSPITAL IN WHICH THE PETITIONER'S WIFE IS IN MEDICAL CARE IS PRODUCED HEREWITH MARKED AS EXHIBIT P5. Exhibit 6 THE COPY OF THIS REPRESENTATION GIVEN ON 20.11.2023 IS PRODUCED HEREWITH AS EXHIBIT P6.