✦ High Court of India · 02 Apr 2025

BY AD vs ZAKEER HUSSAIN

Case Details High Court of India · 02 Apr 2025

Court

High Court of India

Decided

02 Apr 2025

Bench

GOPINATH P

Length

1,491 words

Acts & Sections

Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act 2002

submitted that the petitioner challenged the proceedings by filing SA W.P (C) No.41430/2024 -3- No.334/2024 before the Debts Recovery Tribunal-II, Ernakulam. It is stated that, however, without considering any contention taken by the petitioner, the Tribunal dismissed the securitization application by Ext.P10 order. The petitioner is thus before this court seeking the following reliefs:- “(i) To issue a writ of Mandamus or other appropriate writ order or direction directing the respondents to consider and pass orders on Ext. P11 Application for regularization of the loan account filed by the petitioner within a reasonable time after affording an opportunity to the petitioner to be heard. (ii) Issue a writ of mandamus or other appropriate writ, order or direction, to respondents to permit the petitioner to clear the overdue amounts in reasonable instalments and to regularise the accounts. (iii) Issue a writ of mandamus or other appropriate writ, order or direction to the respondents to return possession of petitioner's vehicle bearing Registration No. KL-45-W-3285 to the petitioner. iv) To grant such other reliefs or orders as this Hon'ble Court may deem fit and proper in the facts and circumstances of the case.”

3. The learned counsel for the respondent bank submits that this is a case where the proceedings under the SARFAESI Act have already been initiated and the vehicle was taken possession by initiating proceedings under Section 14 of the SARFAESI Act. It is submitted that in such circumstances payment of overdue amount in the month of March 2024 cannot have the effect of the account of the petitioner becoming a standard account. It is W.P (C) No.41430/2024 -4- submitted that the Authorised Officer was forced to take possession of the vehicle again as the petitioner had failed to remit the insurance amount and also to pay the monthly EMI payable in the month of March 2024. It is submitted that since the petitioner had chosen to challenge proceedings of the Authorised Officer before the Debts Recovery Tribunal and since the Tribunal had dismissed the securitization application, the petitioner has to challenge the same by approaching the Debts Recovery Appellate Tribunal under Section 18 of the SARFAESI Act and he cannot maintain a writ petition seeking the aforesaid reliefs before this court. It is pointed out that the order of the Tribunal is not even challenged before this court. It is submitted that the overdue amount as on today (02-04-2025) is Rs.15,50,000/-. It is submitted that as a matter of indulgence and without standing on any technicalities the bank is ready to return possession of the vehicle to the petitioner provided the petitioner remits atleast 50% of the overdue amount immediately. It is submitted that the balance overdue amount can be remitted in some instalments.

4. The learned counsel for the petitioner submits that the petitioner is a lorry driver who is earning a living by plying the lorry which has been taken possession of and remains in the possession of the Authorised Officer for the past one year. It is submitted that in such circumstances, the petitioner may W.P (C) No.41430/2024 -5- not be in a position to pay off 50% of the overdue amount immediately. It is submitted that the petitioner will pay some amount for securing the release of the vehicle and the balance amount may be permitted to be paid in some instalments.

5. Having regard to the facts and circumstances of the case and the submissions made as recorded above and also taking into account the fact that the petitioner has undertaken to clear off the overdue amount along with regular EMIs/instalments, I am of the view that the petitioner can be granted an opportunity to clear off the overdue amount on a condition that he will pay a sum of Rs.2,00,000/- on or before 21-04-2025 and the balance overdue amount in ten (10) equal monthly instalments first of which shall be paid on or before 21-05-2025 and thereafter, if the amount so directed is repaid within the time as directed above, to have the loan account regularised.

6. Accordingly, there will be a direction to the respondent bank to accept repayment of the entire overdue amount of Rs.15,50,000/- along with interest, bank charges and costs from the petitioner and regularise the loan account of the petitioner in the following manner:- (i) The petitioner shall pay an amount of Rs.2,00,000/- on or before 21-04-2025 and balance overdue amount of Rs.13,50,000/- together with any accrued interest, bank charges W.P (C) No.41430/2024 -6- and costs shall be repaid in ten equated monthly instalments; (ii) The first instalment shall be paid on or before 21-05-2025 and the subsequent instalments shall be paid on or before 20th working day of each succeeding month; (iii) Petitioner shall continue to pay the regular EMI’s / instalments along with the instalments directed above; (iv) In the event of default of any one instalment, the respondent bank shall be entitled to proceed in accordance with the law; (v) In order to enable the petitioner to repay the entire amounts, all coercive proceedings shall be kept in abeyance. On payment of sum of Rs.2,00,000/- on or before 21-04-2025 the possession of the vehicle bearing registration No.KL-45-W-3285 will be restored to the petitioner. The writ petition is disposed of as above. AMG Sd/- GOPINATH P. JUDGE W.P (C) No.41430/2024 -7- APPENDIX OF WP(C) 41430/2024 PETITIONER EXHIBITS Exhibit.P1 Exhibit.P2 Exhibit.P3 Exhibit.P4 Exhibit.P5 TRUE COPY OF THE ORDER DATED 28/02/2024 OF THE CHIEF JUDICIAL MAGISTRATE COURT, THRISSUR IN CRL.MP NO.2358/2024. TRUE COPY OF THE RECEIPT DATED 07/03/2024 FOR RS.80,000/-. TRUE COPY OF THE RECEIPTS DATED 16/03/2024 FOR RS.4,00,000/-. TRUE COPY OF THE RECEIPT DATED 18/03/2024 FOR RS.95,000/-. TRUE COPY OF THE LETTER DATED 18/03/2024 ACKNOWLEDGING THE RECEIPT OF THE VEHICLE ISSUED BY THE PETITIONER. Exhibit.P5(a) TRUE ENGLISH TRANSLATION OF EXHIBIT.P5. Exhibit.P6 TRUE COPY OF THE NOTICE ISSUED BY THE ADVOCATE COMMISSIONER IN CRL.MP NO.2358/2024 DATED NIL. Exhibit.P6(a) TRUE ENGLISH TRANSLATION OF EXHIBIT.P6 . Exhibit.P7 Exhibit.P8 Exhibit.P9 Exhibit.P10 TRUE COPY OF THE COMMISSION REPORT DATED 01/04/2024 IN CRL MP NO.2358/2024 ON THE FILE OF THE CHIEF JUDICIAL MAGISTRATE COURT, THRISSUR WITH TYPED COPY. TRUE COPY OF THE APPLICATION DATED 31/03/2024 SUBMITTED BY THE PETITIONER TO THE RESPONDENTS. TRUE COPY OF THE JUDGMENT DATED 11/06/2024 IN W.P.(C) NO.13611/2024. TRUE COPY OF THE ORDER DATED 26/09/2024 IN SA NO.334/2024 OF THE DEBT RECOVERY TRIBUNAL-II, ERNAKULAM. W.P (C) No.41430/2024 -8- Exhibit.P11 TRUE COPY OF THE REPRESENTATION DATED 24/10/2024 SUBMITTED BY THE PETITIONER. RESPONDENT EXHIBITS Exhibit R1(a) True copy of the surrender letter issued by the petitioner dated 08.03.2024 Exhibit R1(b) True copy of the statement of account of the petitioner Exhibit R1(c) True copy of the Insurance Policy and the Covering Letter dated 18.03.2024 issued by SBI General Insurance Exhibit R1(d) True copy of the Written Statement filed by the bank before the Debts Recovery Tribyunal-2, Ernakulam

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