Kerala High Court
The Regionalmanager, State Bank Of ... vs Bindu Vijayakumar on 2 February, 2022
Author: S.Manikumar
Bench: S.Manikumar, Shaji P.Chaly
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 2nd day of February 2022 / 13th Magha, 1943
WA NO. 167 OF 2022
AGAINST JUDGMENT DATED 3-1-2022 IN WP(C) 19672/2021 OF THIS COURT.
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APPELLANTS/RESPONDENTS:
1.THE REGIONALMANAGER, STATE BANK OF INDIA,RAVI'S ARCADE,
KOLLAM,PIN-691013.
2.THE CHIEF MANAGER,STATE BANK OF INDIA,
STRESSES ASSETS RECOVERY BRANCH (S.A.R.B.),
LMS COMPOUND,OPPOSITE MUSEUM WEST GATE,
VIKAS BHAVAN (P.O.),THIRUVANANTHAPURAM,PIN-695033.
3.THE BRANCH MANAGER,STATE BANK OF INDIA,
PATHANAPURAM BRANCH,KOLLAM,PIN-689695.
BY ADV.SRI.JAWAHAR JOSE
RESPONDENT/WRIT PETITIONER:
BINDU VIJAYAKUMAR,AGED 49 YEARS,W/O.VIJAYAKUMAR,SIVASHYLAM,
EDUKKADOM (P.O.),EZHIKONE,KOLLAM,PIN-691505.
BY ADV.V.GOPAN
Prayer for interim relief in the Writ Appeal stating that in the
circumstances stated in the appeal memorandum, the High Court be pleased
to stay the direction in the judgment of learned single judge dated
3-1-2022 in W.P.(C) No.19672/2021, pending the disposal of Writ Appeal.
This Writ Appeal coming on for orders on 02/02/2022 upon perusing
the appeal memorandum, the court on the same day passed the following:
P.T.O.
EXT.P6:PHOTOCOPY OF THE REPRESENTATION DATED 18.9.2021
SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT.
EXT.P7:PHTOCOPY OF THE REPRESENTATION DATED 18.9.2021
SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT.
ANNEXURE A2:TRUE COPY OF THE ORDER DATED 6-5-2021
BEARING NUMBER G.O(RT) 404/2021/DMD.
ANNEXURE A3: TRUE COPY OF THE ORDER DATED 14-5-2021
BEARING NUMBER G.O(RT) 416/2021/DMD.
ANNEXURE A4: TRUE COPY OF THE ORDER DATED 21-5-2021
BEARING NUMBER G.O(RT) 432/2021/DMD.
ANNEXURE A5:TRUE COPY OF THE ORDER DATED 29-5-2021
BEARING NUMBER G.O(RT) 444/2021/DMD.
S.MANIKUMAR, C.J. & SHAJI P. CHALY, J.
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W.A.No.167 of 2022
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Dated this the 2nd day of February, 2022
ORDER
S.MANIKUMAR, C.J.
Instant writ appeal is filed by the appellants/respondents in the writ petition, being aggrieved by the judgment in W.P. (C)No.19672/2021 dated 3.1.2022 directing the second respondent in the writ petition (Chief Manager, State Bank of India, Stressed Assets Recovery Branch, LMS compound, Near Museum West Gate, Vikas Bahvan P O, Thiruvananthapuram) to dispose of Exts.P6 and P7 representations filed by the petitioner, in the light of the observations contained in the impugned judgment and grant a limited extension of time for repayment of the balance amount under the sanctioned OTS Scheme after imposing a reasonable percentage of interest on the balance amount due from the petitioner from 30.7.2021 till date of payment and also the period within which the said payment must be made by the petitioner. W.A.NO.163 OF 2022 :: 2 ::
2. Assailing the correctness of the impugned judgment, Mr.Jawahar Jose, learned Standing Counsel for the appellants - Bank, inter alia, submitted that the judgment is contrary to the OTS Scheme, on the basis of which the respondent was directed to pay the instalment. According to the learned Standing Counsel, the OTS Scheme automatically expires on the date of failure of the payment of any one of the instalments.
3. He further submitted that the learned Single Judge in the impugned judgment observed that there was a total lock down in Kerala from 8-5-2021 to 8-7-2021. But as per Annexures A2 to A5 Government Orders, the lockdown was partial and not complete. According to the Standing Counsel the interregnum lockdown between 8-5-2021 to 9-6-
2021 cannot be a reason for not making the repayment on 30-7-2021.
4. By inviting the attention of this court to the decisions reported in Satyabrata Ghose v. Mugneeram Bangur (AIR 1954 SC 44); Alopi Parshad and Sons v. Union of India (AIR 1960 SC 588); Naihati Jute Mills v. Khyaliram Jagannath (AIR 1968 SC 522) and Energy Watchdog v. CERC (2017) 14 SCC 80, learned Standing Counsel for the appellant Bank submitted that the learned Single Judge failed to take note of the law declared by the W.A.NO.163 OF 2022 :: 3 ::
Hon'ble Apex Court in respect of the scope of 'impossibility' of performance of contract as stipulated in Section 56 of the Contract Act.
5. Mr.V.Gopan, learned counsel for the respondent/writ petitioner submitted that due to lockdown, he could not run the business and thus did no pay the third instalment as per the OTS Scheme. However, he paid Rs.15,00,000/- in two instalments. The balance amount as per the OTS Scheme as on 30.7.2021 was Rs.65,80,341/-. Though the respondent/writ petitioner made continuous representations to the Bank as well as to the Grievance Cell to address the non payment of OTS amount and to grant extension, there was no response. Thus, respondent/writ petitioner was constrained to prefer the writ petition.
6. Though the learned Standing Counsel for the Bank sought for intervention of the interim judgment, Mr.V.Gopan, learned counsel for the respondent/writ petitioner submitted that if the Bank works out the interest to be paid for the period from 30.7.2021 till the date of payment for the remaining portion of the 3rd instalment as on 30.7.2021 i.e., Rs.65,80,341/-, the respondent/writ petitioner is ready and willing to W.A.NO.163 OF 2022 :: 4 ::
remit the said amount within five days from the date of receipt of intimation from the Bank.
7. Giving due consideration to the rival submissions, we are of the view that no prejudice would be caused to Bank if the abovesaid amount is paid by the respondent/writ petitioner within the stipulated time. The appellant Bank is directed to workout the interest on the balance amount of the third instalment i.e., Rs.65,80,341/- from 30.7.2021 as expeditiously as possible and accordingly intimate the respondent/writ petitioner for payment within five days from the date of such intimation.
However, we make it clear that the order would be subject to the result of the writ appeal.
sd/-
S.MANIKUMAR CHIEF JUSTICE sd/-
SHAJI P. CHALY JUDGE jes 02-02-2022 /True Copy/ Assistant Registrar