Authorised Officer And Ors vs Sunil Kumar And Ors

S. Manikumar, CJ

Being aggrieved by the directions issued in the Review Petition No.990 of 2020 dated 7.1.2021, instant writ appeal is filed.

Short facts leading to filing of the appeal are as hereunder: The appellants in this Writ Appeal are the respondents in R.P. No. 990 of 2020 and

respondents in W.P.(C).No. 12653 of 2019. For convenience, the same status of the parties as in the writ petition is adopted herewith in this writ

appeal. The writ petitioners availed a loan for construction of a residential building from the 2nd respondent's Vakkom branch on 7.8.2006. Thereafter,

the financial assistance was declared as Non Performance Asset (NPA). The first respondent in the writ petition, on 17.4.2019 issued a notice under

Section 13(2) of the SARFAESI Act 2002. Writ court, after hearing the parties, vide Judgment, directed the writ petitioner to pay the overdue amount

in the said loan account along with the applicable charges and interest commencing from 1.7.2019.

On 17.8.2020, the bank again issued a demand notice to respondents (writ petitioners) due to their non-compliance of the order of the writ court, to

which there was no response. The bank, therefore filed an Original Application before the Debt Recovery Tribunal, Ernakulam as O.A.622 of 2020

which is still pending. While so, the writ petitioner filed a review petition, R.P.No. 990 of 2020 seeking review of the Judgment in W.P.(C). No. 12653

of 2019. The Review Petition came up for consideration on 7.1.2021 and time was sought by the learned counsel for the Bank.

However, the learned Single Judge allowed the review petition by regularizing the said loan account and permitting the writ petitioners to pay off the

dues. Appellants have submitted that the loan account cannot be regularized even if the writ petitioner remits the overdue amount with interest and

other charges in view of the fact that the loan agreement has been terminated and the Bank had already instituted recovery proceedings as O.A. 622

of 2020 before the Debt Recovery Tribunal, Ernakulam, which in fact could not be presented before the learned Single Judge during the hearing of the

Review Petition, as the learned counsel for the appellants could not get hold of the documents pertaining to the said case, as the office was closed on

account of quarantine. The appellants are highly aggrieved by the same and hence this writ appeal. Thus aggrieved by the order in the Review Petition

No.990 of 2020 dated 7.1.2020, instant Writ Appeal is filed inter alia on the following grounds:

A)The learned Single Judge failed to note that there was no error apparent on the face of record for the court to exercise its revisional jurisdiction nor

was any new document or fact presented by the Writ Petitioner seeking interference on the ground that he was not able to produce the same at the

time of disposal of the Writ Petition.

B) The Court below failed to appreciate the fact that the counsel had sought time for submission of the details and the learned Single Judge without

adverting to the said request of the Counsel had disposed of the Review Petition

C) The fact that on account of the failure of the petitioner to comply with the Judgment of the Single Judge, the Bank on 17.08.2020 issued notice of

demand informing the termination of the contract and demanding the petitioner to pay off the entire loan liability. To the said notice, there was no

response. The bank was therefore constrained to file Original Application before the Debt Recovery Tribunal, Ernakulam as O.A. 622 of 2020 on

1.9.2020. The Original Application is pending

D) The Court below failed to appreciate the fact that the Standing Counsel for the Bank was completely laid up with Covid-19 from the end of

November up to the first week of January 2021 and the counsel's office was closed and quarantined off without any access to anybody. Subsequently,

another Junior Advocate of the office Ms. Neenu dealing with the Bank cases was also infected with Covid-19 and the office was again closed.

There was no access for the case bundle or documents pertaining to the case. The R.P. came up for 7.1.2021 and at that time, and time was sought

by the counsel for the Bank.

E). The learned Single Judge ought not to have allowed the review petition vide order dated 7.1.2021 directing the petitioner to pay off the entire loan,

arrears with applicable charges and interest on or before 29.1.2021 and have the loan account regularised.

F) The learned Single Judge failed to appreciate the fact that the loan account cannot be regularised even if the petitioner remits the overdue amount

with interest and other charges in view of the fact that the loan agreement was terminated and the Bank has instituted recovery proceedings as O.A.

622 of 2020 before the Debt Recovery Tribunal, Ernakulam prior to the filing of the Review Petition filed by the petitioner.

G) The learned Single Judge ought to have noticed that the said fact could not be represented before the learned Single Judge during the hearing of the

Review Petition as the counsel appearing could not get hold of the documents pertaining to the said case as the office was closed on account of

quarantine.

Though Mr. Harish Gopinath, learned counsel for the appellants made submission on the above grounds extracted supra, and contended that order

in R.P No.990 of 2020 requires reversal on the above said grounds, we are not inclined to accept the said contention for the reason that taking note of

the submissions made by learned counsel for the writ petitioners that the balance overdue amount in the loan account will be paid in reasonable time,

Mr. R.S. Kalkura, learned Standing Counsel appearing for the Bank before the writ court has candidly admitted to the proposal and the submission

made by the writ petitioners.

For brevity, relevant paragraphs of the order dated 7.1.2021 in R.P. No.990 of 2020 in W.P(C). No.12653 of 2019 is reproduced:

“2. Learned counsel for the petitioners, Shri.R.Anilkumar, submitted that even though his clients have not paid off the entire amount as ordered in

the judgment, they have remitted substantial sums and that they are willing to pay off the balance overdue in the loan account, so as to have it

regularized, within a period of three weeks from today. He prayed that the Bank be directed to give his clients this latitude.

Shri.R.S.Kalkura, learned Standing Counsel appearing for the respondent â€" Bank, affirmed that the petitioners have made some payments, but

submitted that the directions in the judgment have not been complied with fully. He, however, added that if the petitioners are willing to regularize the

loan account, by paying the balance overdues as on today with all applicable charges and interest, he will not stand in the way of this Court granting

them such benefit, taking note of the present COVID-19 pandemic disruptions. In the afore circumstances, I order this review petition and modify the

judgment to the limited extent of permitting the petitioners to pay off the balance overdue in the loan account, along with all applicable charges and

interest, so as to have it regularized, on or before 29/01/2021.

In all other respects, the judgment will remain unaltered. â€​

Thus, accepting the submission of the parties, writ court has modified the judgment made in W.P(C). No.12653 of 2019 dated 28.5.2019 to the

extent of permitting the writ petitioners to pay off balance overdue in the loan account, along with all applicable charges and interest, so as to have it

regularized on or before 29.1.2021. Perusal of the order in review petition shows that in all other respects, judgment in W.P(C). No.12653 of 2019

dated 28.5.2019, was directed to remain unaltered. Time for payment of the balance overdue in the loan account is also over.

Though Mr. Harish Gopinath, learned counsel for the appellant submitted that the concession made by the learned counsel for the appellant /Bank,

before the writ court, is not binding on the appellants and therefore sought for reversal of the judgment in R.P. No.990 of 2020 dated 7.1.2021, we are

not inclined to accept the said submission for the reason that order in R.P. No.990 of 2020 dated 7.1.2021, is solely based on the submission of learned

counsel for the appellants. Having made the submission before the writ court, accepting the proposal of the writ petitioners, we do not find any

justifiable reasons to retract the same.

A learned counsel representing a party to the lis, is not only counsel to his client, but also an officer of the court. It is he, who had made submissions

accepting the proposal of the writ petitioners and he cannot be permitted to resile from the submissions and blame the writ court.

In the event of default of the writ petitioner in paying the balance overdue in the loan account as ordered by the writ court it is always open for the

appellant/bank to proceed further in accordance with law.

In the light of the above discussion, writ appeal is dismissed.