Kerala High Court
M Seena vs The Authorized Officer on 1 September, 2021
Author: S. Manikumar
Bench: S.Manikumar, Shaji P.Chaly
W.A.No.1089 OF 2021 1
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 1ST DAY OF SEPTEMBER 2021 / 10TH BHADRA, 1943
WA NO. 1089 OF 2021
AGAINST THE ORDER/JUDGMENT IN WP(C) 13017/2021 OF HIGH
COURT OF KERALA, ERNAKULAM
APPELLANT/PETITIONER:
M SEENA,
AGED 52 YEARS
PROPREITOR OF MADATHIL TIRE TREADING SITUATED AT
G.M. NIVAS, REGUNATHANPURAM, NEAR PALACHIRA,
VARKALA, PIN-695 143.
BY ADVS.
R.RAJESH (VARKALA)
M.KIRANLAL
MANU RAMACHANDRAN
T.S.SARATH
RESPONDENT:
THE AUTHORIZED OFFICER,
UNDER SECURITIZATION ACT, STATE BANK OF INDIA,
STRESSED ASSET RECOVERY BRANCH, LMS COMPOUND,
OPP. WEST MUSEUM GATE, VIKAS BHAVAN, P.O,
THIRUVANANTHAPURAM, PIN-695 033
BY ADV. SRI.TOM K. THOMAS
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON
01.09.2021, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
W.A. No. 1089/2021 :2:
JUDGMENT
S. MANIKUMAR,CJ.
Before the writ court appellant/petitioner has sought for a writ of mandamus directing the respondents therein to allow the appellant to pay the rearranged due amount of Rs.6,87,800/- (1,70,000 - 8,57,800/- February and March Instalments) in monthly instalments.
2. Adverting to the rival submissions, writ court, by judgment dated 13th July, 2021 in W.P.(C) No.13017/2021, has declined to grant the relief. For brevity, operative portion of the judgment is reproduced:
"To grant an instalment and to settle the loan by granting benefit of one time settlement is the discretion of the creditor as per the scheme floated by it. If the scheme is not providing for any such extension of payment of 3rd instalment as seen from the statement of the respondent, this Court would not be in a position to extend the time for effecting payment of 3rd instalment by the petitioner. As such, there is no question of issuing mandamus to the respondent. In this view of the matter, the petition is devoid of merit and the same is accordingly W.A. No. 1089/2021 :3: dismissed."
3. Being aggrieved, instant writ appeal is filed on the grounds inter alia that the writ court has failed to consider that the discretion exercised by the bank is unreasonable. Added further, Mr.R.Rajesh, learned counsel for appellant, contended that petitioner has already remitted Rs.1,70,000/- within the stipulated time, but due to the second wave of COVID-19, the next installment could not be paid, in time, which the writ court has failed to consider. According to him, writ court has failed to consider that the respondent/bank has discretion to consider the case of the appellant on the facts and circumstances of this case. In the above circumstances, she prayed for reversal of the judgment impugned.
4. Per contra, Mr.Tom K.Thomas, learned Standing Counsel for bank submitted that, the bank has announced a scheme for One Time Settlement (OTS) - RINN SAMADHAN 2020-2021 and as per the Scheme, 20% of the amount has to be paid. As per Exhibit P1, appellant is bound to pay an amount of Rs.1,70,000/- in two instalments and a further instalment of Rs.85,000/- on or before 30.04.2021. W.A. No. 1089/2021 :4:
5. According to the learned Standing Counsel, the balance amount together with applicable interest has to be paid within a period of six months. However, the appellant did not pay the remaining amount within the time as per the Scheme in force.
6. Learned Standing Counsel for the bank further submitted that the Scheme is applicable universally to all the borrowers, and there cannot be any deviation to the scheme.
7. The appellant, under the Scheme was already provided with an opportunity to settle the amount due and payable to the bank and that the bank cannot make any changes to the terms and conditions of the scheme, in order to suit the convenience of an individual borrower. He further contended that the writ court, after considering the rival submissions, has rightly declined the relief prayed for. In the above said circumstances, he prayed to dismiss the writ appeal.
8.Heard learned counsel for the parties and perused the pleadings and materials on record.
9. Admittedly, as per the One Time Settlement (OTS) - RINN SAMADHAN 2020-2021, appellant has paid 20% of the amount under the Scheme. She has failed to pay the third installment on 30.4.2021 W.A. No. 1089/2021 :5: and therefore, sought for extension of time. As the Scheme is universally applicable to all the borrowers, as rightly contended by the learned counsel for the bank, there cannot be any deviation to the Scheme. Discretion exercised is as per the Scheme. Unless the Scheme provides for any extension of time for effecting payment, court cannot issue a mandamus directing the bank to extend the time. Moreover, in contractual matters, court cannot issue any direction, as prayed for.
10. In the light of the above discussion, we are not inclined to interfere with the judgment made in W.P.(C) No.13017/2021 dated 13th July, 2021. Accordingly, instant writ appeal is dismissed.
Sd/-
S. MANIKUMAR, CHIEF JUSTICE.
Sd/-
SHAJI P. CHALY, JUDGE.
smv