Rafeeque vs Authorised Officer

Type Court Judgment Court Kerala Decided Mar 31, 2021

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Citation: sooperkanoon.com/1626043
Court: Kerala High Court
Judge: Honourable the Chief Justice Mr.S.Manikumar,Honourable Mr. Justice Shaji P.Chaly
Decided On: Mar 31, 2021
Case Number: WA/582/2021

Parties & Advocates

Appellant / Petitioner

Rafeeque

Respondent

Authorised Officer

Excerpt

.....mithra) facility availed from the 2nd respondent/karur vysya bank limited in the name of the partnership firm 'm.s excel trading' was defaulted. an extent of 41.50 cents of property along with a two storied residential house located in re-survey number 524/2 of ramanattukara village was the secured asset in respect to the said loan. the first respondent/authorised officer initiated the proceedings under the sarfaesi act 2005 and issued section 13(2) notice on 17.9.2019 and the second respondent/karur vysya bank limited issued ext.p1 possession notice dated 19.1.2021. eventhough the appellant had approached the respondents seeking an opportunity to regularize the loan, the same was denied by the respondents. grievance of the appellant is that the writ court completely erred in reaching a finding that the appellant was already having a facility of installment and thereafter also the account was declared as npa. but in respect to the loan in question, which is the subject matter in the writ petition, the appellant:: 4 :: had never sought or obtained an instalment facility from this hon'ble4. heard learned counsel for the appellant and sri.p.s.george, the learned standing counsel appearing for the respondents.5. we have gone through the materials available on record. learnedsingle judge has rightly held that the writ petition is not maintainable in the light of judgment of the hon'ble apex court in the matter of authorized officer, state bank of travancore and another vs. mathew k.c ((2018) 3 supreme court cases 85) (db).6. in view of the above, we find no illegality or irregularity in theview taken by the learned single judge. no interference of this court is needed at this stage. writ appeal fails and it is dismissed. s.manikumar chief justice shaji p. chaly judge jes

Full Judgment

IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR & THE HONOURABLE MR. JUSTICE SHAJI P.CHALY WEDNESDAY, THE 31ST DAY OF MARCH 2021 / 10TH CHAITHRA, 1943 AGAINST THE JUDGMENT IN WP(C) 6438/2021(D) OF HIGH COURT OF KERALA DATED 12.3.2021 APPELLANT/PETITIONER: RAFEEQUE, S/O AHAMED KOYA T, AGED 47 YEARS, KAROOTH HOUSE, VAIDYARANGADI P O RAMANATTUKARA, KOZHIKODE 673 633. BY ADVS. SRI.ARUN BABU SRI.G.HARIPRASAD SRI.RIPPLE HAMZA RESPONDENTS:
1 AUTHORISED OFFICER, KARUR VYSYA BANK, ERNAKULAM DIVISION OFFICE, KPCC JUNCTION, MG ROAD, ERNAKULAM 682 018 2 KARUR VYSYA BANK LTD, 11/128, PRAMOD BUILDING CHEROOTY ROAD, KOZHIKODE 673 001 REPRESENTED BY ITS BRANCH MANAGER SRI. P.S.GEORGE (SC) THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 31.03.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: :: 2 ::

JUDGMENT

Dated this the 31st day of March 2021 S.MANIKUMAR, C.J. The appellant is the petitioner in W.P.(C)No.6438/2021. This writ appeal is filed challenging the judgment dated 12.3.2021 in W.P.(C)No.6438 of 2021. Writ petition was filed seeking for a relief of giving a breathing time to close the balance payment, as Exhibit P1 possession notice was issued by the bank.

2. The learned Single Judge by the impugned judgment dated 12.03.2021 dismissed the writ petition, which reads as under:

“3. The petition as framed and filed is not maintainable in the light of judgment of the Hon'ble Apex Court in the matter of Authorized Officer, State Bank of Travancore and another vs. Mathew K.C ((2018) 3 Supreme Court Cases 85) (DB).

4. The petitioner, by the indirect way, is challenging the

action under the SARFAESI Act by filing the instant petition and therefore, as the petitioner is having alternate and most efficacious remedy in the matter, the petition cannot be entertained by this

5. So far as the prayer of the petitioner for instalment is

concerned, the matter is contractual between the parties. The petitioner was already having facility of instalment and now again, after declaring the amount of financial assistance as a non- performing asset, the respondents have taken an action under the SARFAESI Act which have ultimately culminated into issuance of :: 3 ::

possession notice. The instalment as claimed therefore, amounts to regularization of loan which is the prerogative of the secured creditor and this Court cannot interfere in the same. In the light of foregoing discussion, the petition is dismissed.”

3. According to learned counsel for the appellant, due to the serious

Covid 19 situation, repayment of the Secured over draft (SOD - Varthaga Mithra) facility availed from the 2nd respondent/Karur Vysya Bank Limited in the name of the partnership firm 'M.S Excel trading' was defaulted. An extent of 41.50 cents of property along with a two storied residential house located in re-survey Number 524/2 of Ramanattukara village was the secured asset in respect to the said loan. The first respondent/authorised officer initiated the proceedings under the SARFAESI Act 2005 and issued Section 13(2) notice on 17.9.2019 and the second respondent/Karur Vysya Bank Limited issued Ext.P1 possession notice dated 19.1.2021. Eventhough the appellant had approached the respondents seeking an opportunity to regularize the loan, the same was denied by the respondents. Grievance of the appellant is that the writ court completely erred in reaching a finding that the appellant was already having a facility of installment and thereafter also the account was declared as NPA. But in respect to the loan in question, which is the subject matter in the writ petition, the appellant

:: 4 :: had never sought or obtained an instalment facility from this Hon'ble

4. Heard learned counsel for the appellant and Sri.P.S.George, the learned Standing Counsel appearing for the respondents.

5. We have gone through the materials available on record. Learned

Single Judge has rightly held that the writ petition is not maintainable in the light of judgment of the Hon'ble Apex Court in the matter of Authorized Officer, State Bank of Travancore and another vs. Mathew K.C ((2018) 3 Supreme Court Cases 85) (DB).

6. In view of the above, we find no illegality or irregularity in the

view taken by the learned Single Judge. No interference of this court is needed at this stage. Writ appeal fails and it is dismissed. S.MANIKUMAR CHIEF JUSTICE SHAJI P. CHALY JUDGE jes

Same Court & Year Kerala · 2021 Same Parties Rafeeque vs Authorised Officer Same Judge Honourable the Chief Justice Mr.S.Manikumar,Honourable Mr. Ju...