IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON TUESDAY, THE 12TH JANUARY 2010 / 22TH POUSHA 1931 WP(C).No. 28356 of 2009(L) -------------------------- SA.316/2009 of DEBT RECOVERY TRIBUNAL, ERNAKULAM .................... PETITIONER: --------------- T.K.GEORGE VAIDYAN, THENGUMVILAYIL HOUSE, MYNAGAPPALLY-THEVALAKARA P.O., KOLLAM. BY ADV. SRI.V.C.JAMES RESPONDENTS: --------------- 1. THE CHIEF MANAGER (AUTHORISED OFFICER) THE UNION BANK OF INDIA, UNION BANK BHAVAN, M.G.ROAD, STATUE, THIRUVANANTHAPURAM. 2. THE BRANCH MANAGER, THE UNION BANK OF INDIA, KARUNAGAPPALLY BRANCH, KOLLAM. 3. THE CHIEF ENGINEER, ROADS & BRIDGES, THIRUVANANTHAPURAM. 4. THE SECRETARY TO GOVERNMENT, PUBLIC WORKS DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. BY ADV. MR. A.S.P. KURUP, SC, UBI. BY GOVERNMENT PLEADER ADV. MR. BIJOY CHANDRAN. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 12/01/2010, ALONG WITH W.P.(C) No. 1 OF 2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.R. RAMACHANDRA MENON, J. .............................................................................. W.P.(C) Nos. 28356 OF 2009 & 1 OF 2010 ......................................................................... Dated this the 12th January, 2010 J U D G M E N T The petitioner in both these cases being one and the same and the issue being closely interconnected, both the matters are taken up together and disposed of by a common judgment 2. The petitioner had availed two loans from the respondent Bank, which, however could not be repaid on time, leading to coercive proceedings taken by the respondent-Bank invoking the relevant provisions under the SARFAESI Act, when the petitioner approached this Court by filing W.P.(C) No. 28356 OF 2009. 3. Obviously, the main contention raised by the petitioner is that much amount is due to the petitioner from the Government towards dues, in respect of various work contracts performed by him. Reliance is also placed on Ext.P15 Government Order, whereby the works undertaken by the petitioner were ordered to be closed with no risk and cost to either parties. W.P.(C) Nos. 28356 OF 2009 & 1 OF 2010 2 4. The learned Counsel for the petitioner submits that pursuant to this, the matter was considered leading to issuance of Ext. P16 by the concerned Executive Engineer, as conveyed to the Chief Engineer /the third respondent, stating that a sum of only Rs.4 lakhs is required to pay off the admitted amount to the petitioner, which, however stands yet to be honoured (despite the fact that the Executive Engineer had written to the higher-ups vide Ext. P18 informing the position about want of sufficient funds and letter of credit from the Government ). The learned Counsel for the petitioner submits that once the said amount is obtained, the entire liability to the Bank could be cleared without any hesitation. The learned Counsel for the Bank submits that the transaction between the petitioner and the Government is not the 'lookout' of the Bank. Since it is an admitted fact that the petitioner had availed loans in connection with the construction of a house and also in connection with his business and has failed to honour his commitment, the Bank is entitled to proceed with coercive steps, which is not assailable W.P.(C) Nos. 28356 OF 2009 & 1 OF 2010 3 under any circumstances. 5. When the matter had come up for consideration before this Court, the coercive steps were intercepted as per the interim order dated 02.11.2009 in I.A.No. 13442 of 2009 directing the petitioner to pay a sum of Rs. 2.5 lakhs by way of two installments on or before 15.12.2009, over and above the sum of Rs.50,000/- stated as already remitted. This interim order was passed after taking note of the interim order passed earlier on 08.10.2009. However, the petitioner could not comply with the direction and as such, no more interference is possible by this Court invoking the discretionary jurisdiction; especially in view of the fact that the petitioner has reportedly approached the DRT with as S.A. No. 316 of 2009 and 317 of 2009, which are stated as pending . 6. Accordingly, interference is declined with regard to the steps being pursued by the Bank for realization of the due amount. However, with regard to the 'first prayer' raised in the W. P(C) No.28356 of 2009 as to the non-finalisation of the W.P.(C) Nos. 28356 OF 2009 & 1 OF 2010 4 proceedings pursuant to Ext.P15, no clarification or statement is forthcoming from the part of the concerned respondents. The specific averments raised in the Writ petition have not been rebutted by filing any counter affidavit. In the said circumstances, this Court finds that the matter requires to be considered and finalised by the 4th respondent forthwith, in view of the fact that Ext. P15 order was passed as early as on 13.11.2002 and Ext. P16 was passed in January, 2006, admitting the liability to an extent of Rs.3,98,871/-, though according to the petitioner, much more amount is due to him. under different heads. The petitioner may prefer a representation before the 4th respondent, for releasing the due amounts, within a period of two weeks, whereupon, the same shall be considered and finalised by the 4th respondent, after giving an opportunity of hearing to the petitioner as expeditiously as possible, at any rate within two months from the date of receipt of the representation. The amount due to the petitioner shall be caused to be disbursed to him immediately, W.P.(C) Nos. 28356 OF 2009 & 1 OF 2010 5 at any rate, within one month there after. It is made clear that the petitioner will be free to work out his remedies and reliefs by approaching the Bank directly, which however is a matter to be considered and decided to the extent it is acceptable and agreeable to the second respondent-Bank. If any such application is filed, especially with regard to the housing loan, appropriate orders shall be passed by the Bank, taking a lenient view to the possible extent. Accordingly, W.P.(C)No. 28356 of 2009 is disposed of. 7. Coming to W.P.(C) 1 of 2010, the petitioner is aggrieved of the subsequent cause of action, whereby the possession of the property over which security interest has been created, is intended to be taken as per Ext.P9 notice issued by the Advocate Commissioner appointed by the concerned C.J.M. Court in the proceedings filed under Section 14(1) of the SARFAESI Act 8. The only challenge in this Writ Petition is to quash Ext. P9 notice issued by the Commissioner and the prayer is to W.P.(C) Nos. 28356 OF 2009 & 1 OF 2010 6 direct the respondents to grant all the benefits and concessions as enjoined under the law and to quantify the amount, if any due . With regard to the first prayer, the learned Counsel for the petitioner submits that the matter has become infructuous, mainly for the reason that the possession was not taken on 04.01.2010 as scheduled and as shown in Ext.P9 since the petitioner handed over a cheque for an amount of Rs. 1.5 lakhs, though it was dis-honoured subsequently. The cause of action in respect of Ext.P9 having become stale, no reliefs need be granted to the petitioner. 9. With regard to the 'second prayer', the learned Counsel submits that maximum leniency has already been shown to the petitioner and that the action now being pursued against the petitioner is only in accordance with the relevant provisions of law. This being the position, no interference is necessitated in this Writ Petition (W.P.(C) No.1 of 2010); more so, when the rights and interests of the petitioner in respect of the grievances have been separately taken care of while rendering W.P.(C) Nos. 28356 OF 2009 & 1 OF 2010 7 the verdict in W.P.(C)No. 28356 of 2009. Hence interference is declined and W.P(C) No. 1 of 2010 is dismissed. P.R. RAMACHANDRA MENON, JUDGE. lk