Dileep Kumar S.U. vs State of Kerala

K. Vinod Chandran, J.—The petitioner is a borrower, from the 3rd respondent-Bank, who assails the recovery proceedings initiated against the property mortgaged to the Bank. The petitioner''s contention, primarily, is that the petitioner is a labourer and, hence, entitled to protection under Section 60(1)(c) of the Code of Civil Procedure [CPC], which has been extended under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 [for brevity "SARFAESI Act"] by clause (g) of Section 31. The petitioner, to escape from the exclusion provided under clause (g) of Section 31, contends that no mortgage has been created with the respondent-Bank.

The learned counsel for the respondent-Bank, however, would contend that, the contentions raised by the petitioner ought to have been urged in a Securitisation Application filed before the Debts Recovery Tribunal [for brevity ''DRT"] within forty-five days as provided under Section 17 of the SARFAESI Act. The possession of the property was taken over by the Bank in 2012; though symbolic, the limitation to approach the Tribunal runs from that date, which the petitioner does not dispute. The learned counsel would also rely on the application for loan, filed by the petitioner, produced as Annexure R3(a), to refute the factual contentions raised by the petitioner. Reliance is also placed on the decision in Kanaiyalal Lalchand Sachdev and Others Vs. State of Maharashtra and Others, to contend that the petitioner having not approached the Tribunal, would not be entitled to invoke the extra-ordinary remedy under Article 226 of the Constitution to agitate the contentions which ought to have been raised before the Tribunal.

With respect to the contention that the petitioner is only a labourer, it is evident that, Annexure R3(a), produced by the respondent-Bank, is the application filed by the petitioner for the loan. The application for loan, taken for the purpose of the marriage of the petitioner''s sister, indicates the petitioner''s profession as "business". The petitioner has also unequivocally stated in the application that the business carried on by the petitioner, at the time of application, generates an income of Rs.3,00,000/- (Rupees three lakhs).

It is evident that the petitioner, again by his own admission, is working in an SSI Unit owned by his mother, as has been stated in the writ petition. Though the petitioner contends that he is a Goldsmith by birth, engaged in Blacksmithy, that alone does not make him a labourer, as it is contemplated under Section 60(1) of the CPC. The SARFAESI Act also, by clause (g) of Section 31, excludes any property, on which a security interest has been created, from applicability of Section 60 of the CPC. Hence, there is no question of the petitioner being exempted under clause (g) of Section 31 of the SARFAESI Act. The production of the records in the proceedings by the respondent-Bank, would be relevant only in the context of Section 60 CPC being made available to the petitioner. That having been found to be not applicable, for the sole reason that the petitioner is a labourer; which contention is belied by the records itself, it may not be proper for this Court to call for such documents from the respondent-Bank.

Considering all the afore-said circumstances, this Court is not inclined to interfere in the matter and the writ petition is found to be devoid of merit.

However, in the context of the impecunious circumstance pleaded by the petitioner, it is directed that the proceedings pursuant to Exhibit P14 shall be kept in abeyance on condition of the petitioner settling the entire loan in 12 [twelve] monthly instalments. The respondent-Bank shall quantify the dues as on 15.08.2014 and issue a statement of accounts, in accordance with which the instalments shall be paid. The 1st instalment shall be paid on or before 24.08.2014 and thereafter; the due date of instalments falling on the 24th of each succeeding month. If default is committed in two consecutive instalments, then the proceedings under Exhibit P14 shall revive and continue. On the satisfaction of the dues as per the statement, the Bank shall give a statement of the future interest from 31.07.2014 and the same shall be settled as the 13th instalment.

The writ petition stands dismissed, however, granting instalment facility. There shall be no order as to costs.