Kerala High Court
Dr.M.A.Abdul Hakkim vs The State Of Kerala on 30 January, 2020
Author: Alexander Thomas
Bench: Alexander Thomas
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS
THURSDAY, THE 30TH DAY OF JANUARY 2020 / 10TH MAGHA, 1941
WP(C).No.35895 OF 2019(J)
PETITIONER:
DR.M.A.ABDUL HAKKIM,
PROPRIETOR,'M/S.SHAH TRADERS',
RESIDING AT RAHATH, T.K.M.C.P.O, KOLLAM-691005.
BY ADV. SRI.BOBBY JOHN
RESPONDENTS:
1 THE STATE OF KERALA,
REPRESENTED BY THE PRINCIPAL SECRETARY TO
GOVERNMENT, INDUSTRIES(K)DEPARTMENT,
MAIN BLOCK, GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM-695001.
2 THE DEPUTY SECRETARY,
INDUSTRIES(K)DEPARTMENT,MAIN BLOCK,
GOVERNMENT SECRETARIAT,THIRUVANANTHAPURAM-695001.
3 THE CHIEF MANAGER,
FEDERAL BANK,KOLLAM BRANCH,RAVI'S ARCADE,
NEAR IRON BRIDGE,KOLLAM-691013.
4 THE AUTHORISED OFFICER,
FEDERAL BANK KOLLAM BRANCH,RAVI'S ARCADE,
NEAR IRON BRIDGE,KOLLAM-691013.
5 THE CONVENOR,
SLBC AND DGM CANARA BANK,CIRCLE OFFICE,
CANARA BANK BUILDING,M.G.ROAD,
THIRUVANANTHAPURAM-695001.
SRI.JESTIN MATHEW, GOVT.PLEADER FOR R1 & R2
SRI.SUNIL SHANKER, STANDING COUNSEL FOR R3 & R4
DR.PAULY MATHEW MURICKEN, ADVOCATE FOR R5
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
30.01.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
ALEXANDER THOMAS, J.
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W.P.(C) No. 35895 of 2019
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Dated this the 30th day of January, 2020
JUDGMENT
The prayers in the above Writ Petition (Civil) are as follows:
"
i. To issue a writ in the nature of mandamus or any other appropriate writ or order directing the 2 nd respondent to consider and pass orders in Exhibit P4 application expeditiously within a time limit fixed by this Hon'ble Court; ii. To issue a writ in the nature of mandamus or any other appropriate writ or order directing the 1st respondent to facilitate the expeditious disposal of Exhibit P4 application for Cashew Industrial Revival Package;
iii. To issue a writ in the nature of mandamus or any other appropriate writ or order directing the 4th respondent and 5th respondents to take further steps pursuant to Exhibit P5 letter expeditiously to facilitate the speedy disposal of Exhibit P4 application for Cashew Industrial Revival package; iv. To issue a writ in the nature of mandamus or any other appropriate writ or order directing the 3 rd respondent and 4th respondents not to proceed further with the steps for the realisation of loan arrears which is the subject matter of Exhibit P7 notice from the petitioner till the disposal of Exhibit P4 application by the competent authority;
v. To issue a writ in the nature of mandamus or any other appropriate writ or order directing the 3 rd respondent to permit the petitioner to clear the loan arrears which is the subject matter of Exhibit P7 Notice in 24 monthly instalments; vi. To issue a writ in the nature of mandamus or any other appropriate writ or order directing the 3 rd respondent to permit the petitioner to sell a portion of the property which is the subject matter of Exhibit P7 notice in order to clear the loan arrears which is the subject matter of Exhibit P7 notice; vii. To pass such other orders as this Hon'ble Court may deem fit and proper in the facts and circumstances of the case; AND viii. To award the cost of the proceeding to the petitioner."
2. Heard Sri.Bobby John Pulickaparambil, learned counsel appearing for the petitioner, Sri.Jestin Mathew, learned W.P.(C).No. 35895 /2019 ..3..
Government Pleader appearing for R-1 & R-2, Sri.Sunil Sankar, learned counsel appearing for R-3 & R-4 (Federal Bank) and Dr.Pauly Mathew Muricken, learned counsel appearing for R-5 (State Level Bankers Committee, Kerala ).
3. This Court without getting into the nitty gritty of the details of the facts, the core of the matter is that, this Court as per Ext.P-2 judgment rendered on 19.6.2019 in WP(C).No.15226/2019 filed by the petitioner herein, has ordered that the case of the petitioner for securing a Cashew Industry Revival Scheme Benefits, would deserve serious considerations at the hands of the Committee constituted by the Government in which the State Level Bankers Committee and the concerned Bank are participants, and the 2nd respondent Deputy Secretary to the Government of Kerala in the Industries Department, posted to be the Convener of the said Committee has directed that the petitioner should submit necessary application along with requisite materials before the Deputy Secretary to the Government of Kerala in the Industries Department, within 10 days, and upon which the said officer was W.P.(C).No. 35895 /2019 ..4..
directed to convene a meeting of the high power committee, with the nominee of the respondent Federal Bank, and the committee was thereafter directed to take considered decision on the case of the petitioner for grant of benefits under the Cashew Industry Revival Scheme without much delay, and orders to be passed thereon within one month from the date of receipt of such application.
4. It is not in dispute that the petitioner has complied with the said direction and has submitted Ext.P-4 application along with the requisite materials before the 2nd respondent Deputy Secretary, Industries Department, Government of Kerala. Thereafter, by Ext.P-5 letter dated 29.11.2019 the 1st respondent State Government has forwarded the matter to the 5 th respondent State Level Banker's Committee (Kerala) for their considered views in the matter by furnishing a report to the 2nd respondent.
5. Further it is stated by the counsel for the 3 rd respondent Federal Bank that the 3rd respondent Federal Bank has also furnished their objections/remarks to the said Committee on W.P.(C).No. 35895 /2019 ..5..
16.12.2019. It now turns out that the said expert high power committee was dissolved by the 1 st respondent State Government on 18.12.2019 as has been apprised by this Court by Sri.Jestin Mathew, learned Government Pleader appearing for official respondents 1 & 2. It has also now come out that the high power committee has not taken any considered decision on the case of the petitioner in terms of the specific directions to that effect made by this Court as per Ext.P-2 judgment dated 19.6.2019. On the other hand, it appears that even after rendering of Ext.P-2 judgment as early as on 19.6.2019, eventhough final decision in the matter has not yet been made by the said high power committee. The Advocate Commissioner appointed under Sec.14 of the SARFAESI Act has proceeded on the request of the 3 rd respondent Federal Bank for taking possession of the subject property, as can be seen from Ext.P-7 letter dated 21.11.2019, issued by the Advocate Commissioner. It has to be borne in mind that this Court has not only directed the respondents to take a considered decision on the case of the petitioner for revival scheme, as aforestated. But W.P.(C).No. 35895 /2019 ..6..
also that, this Court has directed in Ext.P-7 judgment that until a decision is rendered by the said expert committee, or all proceedings proceeded by the respondent Federal Bank against the petitioner under the provisions of the SARFAESI Act shall stand deferred. It is not known as to why inspite of the abovesaid directions, the Advocate Commissioner has proceeded further in the matter as can be seen from Ext.P-7 letter.
6. In the written instructions furnished by Sri.Jestin Mathew, learned Government Pleader as per Government letter No.K2/246/2019/IND dated 30.1.2020, it has been stated as follows:
"I am directed to inform you that Government had constituted the committee for recommending restructuring/refinancing the sick cashew units and the committee submitted its final report to Government for revival package, the objectives of the committee as laid down by the Government are to access the financial viability of the units so as to examine the feasibility of the revival package if any submitted by the borrower and made recommendations to the respective banks and to recommend an honourable exit package if the revival package is not found feasible.
The Committee was constituted to examine proposals submitted by cashew units under crisis so as to find out viability of revival of respective units. Out of the 126 cases considered, 74 cases are recommended for restructuring/Additional finance. 13 cases referred for an honourable exit through One Time Settlement. Majority of Cases recommended for OTS include Suit filed in court and SARFAESI initiated, which became NPA long back. Existing Liability in some of the accounts are huge so that the revival will not be possible without infusing huge amount of money in the form of capital and loan.W.P.(C).No. 35895 /2019
..7..
Wherever the committee had valid reasons to suspect diversion of funds, such cases are not considered for revival. However OTS is recommended in such cases also. Wherever loan liability is less, the committee was of the opinion to consider such cases favorably for revival/restructuring are possible and made recommendations accordingly. The committee also recommended the banks concerned for extending One Time Restructure (OTR) announced by RBI vide Circular DBT. No.BP.BC 18/21.048/2018-19 dated 01/01/2019 to all the eligible units. The Committee having fulfilled its mandate recommended in its report to dissolve the committee and the committee was non functional after that. Meanwhile, since the committee constituted completed the task entrusted, Government issued order to wind up the committee and direction has been given the individual banks as well as the SLBC to resolve any further related to Sick Cashew Owners appropriating at their end.
Persuant to the judgment of Hon'ble High Court WP(C) No.35895/2019(J) filed by Dr.M.A.Abdul Hakkim, Government had forwarded the representation received from the petitioner to State Level Banking Committee and Federal Bank for favorable decision as the committee was non functional at that point of time.
The Bank and State Level Banking Committee had not given any report on the implementation of Government direction in this regard. It is also pointed out that Government have convened meeting after meeting of SLBC and member banks for favorable finance package to all sick cashew units which are under the threat of Revenue Recovery by the Banks."
7. From a reading of the said Government letter No.K2/246/2019/IND dated 30.1.2020 it is seen that, according to the 1st respondent Government the 3rd respondent Federal Bank, and the 5th respondent State Level Banker's Committee, Kerala, has not given any report on the implementation of the Government direction regarding forwardal of the case of the petitioner for the remarks of the all those parties. Further it is seen that, now the 1st respondent Government as per G.O.(Rt) No.1276/2019/ID W.P.(C).No. 35895 /2019 ..8..
dated 18.12.2019 has ordered that the said high power committee stands dissolved.
8. After having heard all the parties concerned, it is seen that, it is beyond in dispute that the directions and orders issued by this Court in Ext.P-2 judgment dated 19.6.2019 has become final and conclusive. All the parties herein are also parties thereto. The respondents herein are obliged to comply with the directions issued by this Court in Ext.P-2 judgment in letter and spirit, and there cannot be any excuse from that merely because the high power committee has been dissolved and merely because the respondents concerned have not cared to meticulously comply with the directions in Ext.P-2 judgment within the time limit of one month after the receipt of the petitioner's application Ext.P- 3 on 28.6.2019. One month has certainly expired atleast by the end of July, 2019 or the 1st or 2nd week of August, 2019. The high power committee has been decided to dissolve only on 18.12.2019. Therefore, since the judgment has become conclusive and final, and it is the legal obligation of each and every one of the W.P.(C).No. 35895 /2019 ..9..
respondents to comply with the same in letter and spirit, the respondents have obliged to comply with the said directions notwithstanding the dissolution of the committee.
9. Accordingly it is ordered that, the 1 st & 2nd respondents will ensure that the said committee is constituted only for the purpose of consideration of this case in compliance with Ext.P-2 judgment, and in pursuance of Ext.P-5 Government letter No.K2/246/2019/IND dated 29.11.2019, and then to ensure that the directions in Ext.P-2 judgment are complied with, in substance and spirit. In that view of the matter, in case the 3 rd respondent Federal Bank and the 5 th respondent State Level Banker's Committee, Kerala, may submit their detailed remarks in the matter to the 2nd respondent Deputy Secretary, with copy to the 1st respondent Principal Secretary to Government, without any further delay at any rate within a period of one week. The parties need not wait for the formal issuance of certified copy of this judgment, and the respondents shall immediately proceed to do all acts necessary to ensure that the directions in Ext.P-2 judgment W.P.(C).No. 35895 /2019 ..10..
are complied with, on emergent cases. Thereafter, the 1 st & 2nd respondents will ensure that the said committee with the participation of the 3rd respondent Federal bank and the 5th respondent State Level Banker's Committee, Kerala, should afford reasonable opportunity of being heard to the petitioner through authorised representative/counsel, if any, then should take a considered decision thereon without much delay. The entire exercise in this regard should be duly completed by the respondents without much delay, preferably within a period of 4 to 6 weeks from the date of production of a certified copy of this judgment.
10. Needless to say that all the respondents concerned, more particularly the 3rd & 4th respondents (Federal Bank) and the other statutory instrumentalities like the Advocate Commissioner, Chief Judicial Magistrate, etc, are legally obliged to comply with the other directions in Ext.P-2 judgment that until a decision is taken by the said committee, the entire proceedings initiated against the petitioner, under the SARFAESI Act shall remain W.P.(C).No. 35895 /2019 ..11..
deferred. The counsel for the 3rd & 4th respondents (Federal Bank) will furnish a copy of this judgment to the Advocate Commissioner concerned, who has issued Ext.P-7 letter and also to the Chief Judicial Magistrate concerned, for necessary information.
With these observations and directions, the above Writ Petition (Civil) will stand disposed of.
Sd/-
ALEXANDER THOMAS, JUDGE MMG W.P.(C).No. 35895 /2019 ..12..
APPENDIX PETITIONER'S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE MEMORANDUM OF WRIT PETITION ie W.P.(C)NO.15226 OF 2019 FILED BY THE PETITIONER BEFORE THIS HON'BLE COURT.
EXHIBIT P2 TRUE COPY OF THE JUDGMENT,DATED 19.06.2019 IN W.P(C)NO.15226 OF 2019,OF THIS HON'BLE COURT.
EXHIBIT P3 TRUE COPY OF THE FORWARDING LETTER DATED 28.06.2019,OF THE APPLICATION FOR CASHEW INDUSTRIAL REVIVAL PACKAGE SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT EXHIBIT P4 TRUE COPY OF THE APPLICATION FOR CASHEW INDUSTRIAL REVIVAL PACKAGE,DATED NIL,SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT EXHIBIT P5 TRUE COPY OF THE LETTER DATED 29.11.2019,ISSUED FROM THE OFFICE OF THE 1ST RESPONDENT TO THE 4TH RESONDENT AND 5TH RESPONDENT EXHIBIT P6 TRUE COPY OF THE MINUTES OF THE CASHEW INDUSTRIAL REVIVAL PACKAVE MEETING OF THE STAKE HOLDERS CONVENED BY THE GOVERNMENT ON 14.11.2019 EXHIBIT P7 TRUE COPY OF THE NOTICE DATED 21.11.2019 ISSUED BY THE ADVOCATE COMMISSIONER UNDER THE SARFAESI ACT TO THE PETITIONER.
EXHIBIT P8 TRUE COPY OF THE LETTER DATED
05.12.2019,SUBMITTED BY THE PETITIONER BEFORE
THE 3RD RESPONDENT.
EXHIBIT P9 TRUE COPY OF THE REPRESENTATION DATED
24.12.2019,SUBMITTED BY THE PETITIONER BEFORE
THE 3RD RESPONDENT.