IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON MONDAY, THE 5TH APRIL 2010 / 15TH CHAITHRA 1932 WP(C).No. 28156 of 2009(L) -------------------------- PETITIONER(S): --------------- KASARGOD AGRO INDUSTRIES (INDIA) LTD., KINFRA SMALL INDUSTRY PARK,SEETHAMGOLI,MAIPADI, KASARGOD DISTRICT,REP.BY ITS CHAIRMAN AND MANAGING DIRECTOR,V.V.KHALID HAJI,S/O.KUNHAHAMMED,AGED 62 YEARS,VELLANAVALAPPIL HOUSE,THRIKKULAM, THIROORANGADI,MALAPPURAM DISTRICT. BY ADV. SRI.BABU S. NAIR RESPONDENT(S): --------------- 1. THE ANDHRA BANK LTD., REP.BY ITS BRANCH MANAGER, KASARGOD,KASARGOD DISTRICT. 2. THE ASSISTANT GENERAL MANAGER (AUTHORIZED OFFICER UNDER THE SARFAESI ACT), ANDHRA BANK,ZONAL OFFICE,CHENNAI,TAMIL NADU. STANDING COUNSEL SRI.ABRAHAM MATHEW THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 05/04/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.R. RAMACHANDRA MENON, J. ----------------------------------------------- WP(C) No. 28156 of 2009 --------------------------------------- Dated, this the 5th day of April, 2010 J U D G M E N T The petitioner has approached this Court challenging the recovery proceedings pursued by the Bank invoking the remedy under the SARFAESI Act. When the matter came for consideration on 7.10.2009, the coercive proceedings were intercepted on condition that the petitioner remitted a sum of Rs. 45 lakhs on or before 26.10.2009. The condition imposed by this Court was not satisfied and it was reported on next posting day i.e., on 26.10.2009, that there was a proposal to have 'OTS' and accordingly, the matter was adjourned, subject to the condition that the petitioner remitted a sum of Rs.20 lakhs on or before 30.11.2009, i.e., verifying the earlier order. Thereafter, time for satisfying the condition was extended as per order 02.12.2009 in I.A. 14932/2009. The case was adjourned on many an occasion, referring to the settlement talks and negotiations going on. The petitioner filed I.A. 355/2010 pointing out that the petitioner was to satisfy the entire balance amount under OTS to an extent of Rs.1.75 crores mentioned in Ext.P6 sanction, for which time was sought for till 31.03.2010, after rescheduling the three instalments shown in Ext.P6. WP(C) No.28156/2009 2 2. Ext.P6 reveals that the benefit of 'OTS' was given to the petitioner on 08.01.2010, making it clear that, in place of the total liability of about Rs.3.54 crores as on 10.12.2009, the Bank was ready to have the matter settled under 'OTS', on condition that the petitioner satisfied a sum of Rs.2.20 crores on or before 28.02.2010, making it clear that the time was the essence of the compromise. As per the very same communication, it was stated that, after giving credit to the same Rs.45 lakhs deposited by the petitioner, the balance 1.75 crores was to be satisfied by way of ‘three’ instalments, the first of which the tune of Rs.16 lakhs on or before 10.01.2010, the next one of similar extent on or before 31.01.2010 and the last one of Rs.55 lakhs on or before 25.02.2010. It was in the said circumstance, I.A. 355/2010 was filed seeking for extension of time, to reschedule the repayment, so as to enable the petitioner to satisfy the liability on 31.01.2010. 3. The course suggested from the part of the petitioner was stated as not acceptable to the Bank. The learned counsel for the petitioner submits that the matter has been taken up with the Union Bank of India for providing necessary financial assistance and reportedly the Bank has already cleared necessary steps and the loan account would be taken over by the Union Bank. A letter stated as issued by the Union Bank of India was also produced (seeking clarification of the respondent Bank WP(C) No.28156/2009 3 as to the various particulars) and this document has been produced as Ext.P6 (marking appears to be defective). It was in the said circumstance that the matter was adjourned to ascertain the position, whether the loan account was intended to be taken over by the Union Bank of India, to have the loan amount due to the respondent Bank settled directly. The learned counsel appearing for the respondent Bank submits that no such instruction as to the sanction of any loan has been served to the respondent Bank. The learned counsel for the petitioner submits that the delay is because of the absence of the concerned authority, who is to sign the necessary documents and that it will be caused to be effected forthwith or else the petitioner will clear the liability within a period of 15 days by raising necessary amount from other corners. 4. The proposal made on behalf of the petitioner seeking to have further time is vehemently opposed from the part of the respondent Bank, asserting that the petitioner is yet to comply with the direction given by this Court and that the petitioner has not honoured the commitment with regard to the satisfaction of the liability under 'OTS' as well. 5. Taking note of the sequence of events, this Court does not find it as a fit case so as to invoke the discretionary jurisdiction under Article 226 of the Constitution of India. Accordingly, interference is declined and the Writ Petition is dismissed. However, this is without WP(C) No.28156/2009 4 prejudice to the right of the petitioner to prevail upon the respondent Bank by producing necessary materials, if any, to their satisfaction and to have the matter considered; which shall be at the sole description of the respondent Bank. P. R. RAMACHANDRA MENON JUDGE dnc