IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH WEDNESDAY, THE 26TH NOVEMBER 2008 / 5TH AGRAHAYANA 1930 WP(C).No. 29392 of 2008(Y) ---------------------------------------------- PETITIONER(S): --------------------- M.N. BHASKARAN NAIR, P.W.D. CONTRACTOR, “USHUS”, PAZHAVEEDU P.O., ALAPPUZHA DISTRICT. BY ADV. SRI.S.SANAL KUMAR RESPONDENT(S): ------------------------- 1. THE CHIEF MANAGER (ADVANCES), STATE BANK OF TRAVANCORE, REGION-3, ZONAL OFFICE, ERNAKULAM. 2. THE MANAGER, STATE BANK OF TRAVANCORE, PAZHAVEEDU BRANCH, ALAPPUZHA. 3. THE BANKING OMBUDSMAN, OFFICE OF THE BANKING OMBUDSMAN, RESERVE BANK OF INDIA, TRIVANDRUM. ADV. SRI.SATHISH NINAN FOR R1 & R2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 26/11/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX IN W.P.(C). NO.29392 OF 2008 Y PETITIONER'S EXHIBITS: EXT.P1TRUE COPY OF THE JUDGMENT OF THIS HONOURABLE COURT IN W.A.NO.1966/2006 AND W.P.(C). NO.21338/2006. EXT.P2TRUE COPY OF THE APPLICATION FOR ONE TIME SETTLEMENT DATED 23.8.207. EXT.P3TRUE COPY OF THE COMMUNICATION OF THE ZONAL OFFICE, ERNAKULAM OF THE STATE BANK OF TRAVANCORE. EXT.P4TRUE COPY OF THE CALCULATION SHEET. EXT.P5TRUE COPY OF THE PETITION SUBMITTED BEFORE THE BANKING OMBUDSMAN. EXT.P6TRUE COPY OF THE COMMUNICATION OF THE BANKING OMBUDSMAN DATED 26.2.2008. EXT.P7TRUE COPY OF THE NOTICE DATED 27.8.2008. RESPONDENTS' EXHIBITS: NIL. // True Copy // PS to Judge K. M. JOSEPH, J. -------------------------------------- W.P.C. NO. 29392 OF 2008 Y -------------------------------------- Dated this the 26th November, 2008 JUDGMENT Petitioner has approached this Court challenging Ext.P6. He further seeks a direction to pass orders on Ext.P5 application. Case of the petitioner, in brief, is as follows: Petitioner is a contractor. He had availed a loan from the second respondent. Default was committed in repayment. Of course, petitioner has a case that large amounts were due from the Government. The matter reached this Court and culminated in Ext.P1 Judgment of the Division Bench. The Division Bench directed that if the petitioner files application for the benefit under the One Time Settlement Scheme, it was to be considered. Petitioner filed Ext.P2 before the second respondent Bank. That was rejected by Ext.P3 by the Bank, stating that there is no concrete offer. Petitioner, thereupon, filed Ext.P5 before the Banking Ombudsman. That came to be rejected by Ext.P6 on the ground that the complaint will not lie. WPC.29392/08 Y 2 2. I heard Shri S. Sanal Kumar, learned counsel for the petitioner and Shri Sathish Ninan, learned standing counsel for the respondent Bank. Shri S. Sanal Kumar would submit that, of course, this is a case where, going by the Circular issued by the Reserve Bank of India dated 3.9.2005 regarding OTS, the petitioner is entitled to get the benefit of OTS in terms thereof. Of course, in Ext.P5 complaint filed before the Ombudsman, there is no specific reference to the Circular as being the premise of the complaint. There is no such case in the Writ Petition also specifically. But, this is the contention advanced by the learned counsel for the petitioner. 3. After having heard the learned counsel appearing for the parties, I feel that the petitioner should be permitted to approach the Bank by filing a concrete proposal for OTS and the Bank has to consider as to whether the Reserve Bank of India Circular dated 3.9.2005 is applicable to the petitioner and if it is applicable, the benefits thereunder should be granted to the petitioner. If it is not applicable, the reasons therefor should be WPC.29392/08 Y 3 communicated to the petitioner. At any rate, in the event of it being not applicable, the Bank can be directed to give the benefits available to the petitioner under the Bank's Scheme. 4. In such circumstances, the Writ Petition is disposed of directing that if the petitioner approaches the second respondent within a period of one week from today, the concerned Officer of the first respondent Bank will consider whether the Reserve Bank of India Circular dated 3.9.2005 in relation to OTS is applicable to the loan in question and if it is applicable, to make available such benefits as the petitioner is entitled to. If the Bank takes the view that it is not applicable, the reasons for such decision will be communicated to the petitioner. At any rate, in such an event, the Bank will give such benefits as are available in terms of its own Scheme. A decision in this regard as aforesaid will be taken within a period of one month from the date of receipt of the application by the petitioner. Petitioner will be given an opportunity of personal hearing before a decision is taken by the concerned Authority of the Bank. Till WPC.29392/08 Y 4 such time as a decision is taken and communicated to the petitioner, proceedings under the SARFAESI Act shall be kept in abeyance. Sd/= K. M. JOSEPH, JUDGE kbk. // True Copy // PS to Judge