WP(C) NO. 8084 OF 2025 1 2025:KER:27374 IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE GOPINATH P. FRIDAY, THE 28TH DAY OF MARCH 2025 / 7TH CHAITHRA, 1947 WP(C) NO. 8084 OF 2025 PETITIONER: SANTHAMMA ALIAS SANTHA GOPINATHAN, AGED 74 YEARS W/O. M.G. GOPINATHAN NAIR, MATHUKKAL HOUSE, KULANADA P.O., PATHANAMTHITTA DISTRICT, PIN - 689503 BY ADVS. R.PADMARAJ DEEPAK MOHAN RESPONDENTS: 1 THE SOUTH INDIAN BANK LTD, REGIONAL OFFICE, 2ND FLOOR, T.M.J. COMPLEX, RAMANCHIRA, MUTHOOR P.O., THIRUVALLA REPRESENTED BY ITS AUTHORIZED OFFICER, PIN - 689107 2 THE MANAGER, THE SOUTH INDIAN BANK LTD., DOOR NO. XI/12, AMBATTU BUILDING, COURT ROAD, CHENGANNUR P.O., ALAPPUZHA, PIN - 689503 3 BIJU MATHUKKAL GOPINATHAN NAIR, AGED 45 YEARS S/O. M.G. GOPINATHAN NAIR, MATHUKKAL HOUSE, KULANADA P.O., PATHANAMTHITTA DISTRICT, PIN - 689503 BY ADVS. SUNIL SHANKER VIDYA GANGADHARAN ARYA SATHEESH THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 28.03.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 8084 OF 2025 2 2025:KER:27374 JUDGMENT The petitioner is a guarantor in respect of a loan availed by the 3rd respondent (son of the petitioner) from the 1st respondent bank. The petitioner has also mortgaged her property for securing repayment of the liability. Proceedings were initiated for recovery of amounts due from the 3rd respondent by also proceeding against the mortgaged property. The petitioner is thus before this court challenging the proceedings initiated. 2. After considering the submissions made by the learned counsel appearing for the petitioner and the learned counsel appearing for the respondent bank, this Court on 28.02.2025 and this court passed the following order:- “The learned counsel for the respondent bank to get instructions and to file statement. Taking into consideration of the submission of the learned counsel for the petitioner that the petitioner is now gainfully employed and will be in a position to clear the entire liability in instalments and also taking into consideration of the submission of the learned counsel for the petitioner that the securitisation application is pending before the Debts Recovery Tribunal will be withdrawn, if instalment facility is granted, it is directed that the taking of physical possession shall stand adjourned on condition that petitioner remits a sum of Rs.5,00,000/- towards the loan liability, within a period of one week from today. Post on 07.03.2025.” 3. Thereafter when this matter came up for consideration on 07.03.2025, this court noticed the submission of the learned counsel for the respondent bank that no amount had been paid WP(C) NO. 8084 OF 2025 3 2025:KER:27374 pursuant to the interim order dated 28.02.2025 and this Court passed the following order: “Learned counsel for the respondent bank submits that condition imposed in the interim order dated 28-02-2025 has not been complied with. The learned counsel for the petitioner submits that the petitioner will try to comply with the condition if one more week is granted. It is also stated that the petitioner is not standing in the way of the bank taking possession of the secured asset. Taking into consideration of the aforesaid submission, list this matter for further consideration on 13-03-2025. It is made clear that the fact that this writ petition is pending will not prevent the respondent bank from taking physical possession of the secured asset.” 4. Though orders were dictated on 13.03.2025 dismissing the Writ Petition, at the request of the learned counsel for the petitioner, the matter was listed as “to be spoken to”. When the matter is taken up for consideration today, it is the submission of the learned counsel for the petitioner that the petitioner remitted a sum of Rs.2,50,000/- on 14.03.2025 and another sum of Rs.2,50,000/- on 20.03.2025. It is submitted that notwithstanding the above, the authorized officer of the respondent bank has taken physical possession of the secured assets. 5. Learned counsel appearing for the respondent bank submits that since the loan in question is an overdraft facility, the question of regularization does not arise and the facility can be renewed only if the petitioner complies with all conditions including the condition WP(C) NO. 8084 OF 2025 4 2025:KER:27374 that the facility must be kept within limits. It is submitted that since possession has already been taken by the authorized officer, the petitioner may be directed to approach the competent authority of the respondent bank to consider whether the overdraft facility can be renewed subject to additional conditions. 6. Having heard the learned counsel for the petitioner and the learned counsel appearing for the respondent bank and considering the fact that the petitioner has by now complied with the condition imposed by this Court through interim order dated 28.02.2025, this Writ Petition will stand disposed of directing that if the petitioner were to submit a proposal for renewal of the overdraft facility to the competent authority of the respondent bank within a period of two weeks from today (28.03.2025) the competent authority shall take a decision in the matter and consider whether the overdraft facility can be renewed, and if so, on what terms and conditions. The competent authority will also consider whether the possession of the secured asset can be restored to the petitioner subject to any further condition. A decision shall be taken by the competent authority within a period of two weeks from the date on which the petitioner submits his proposal for renewal of the overdraft facility. 7. Further proceedings under the SARFAESI Act shall remain suspended till a decision is taken on the proposal to be submitted WP(C) NO. 8084 OF 2025 5 2025:KER:27374 by the petitioner as directed above. This Writ Petition is ordered accordingly. sd/- GOPINATH P. JUDGE Nsd WP(C) NO. 8084 OF 2025 6 2025:KER:27374 APPENDIX OF WP(C) 8084/2025 PETITIONER EXHIBITS Exhibit P1 A TRUE COPY OF THE NOTICE DATED 03.08.2023 ISSUED BY THE 1ST RESPONDENT. Exhibit P2 A TRUE COPY OF THE SYMBOLIC POSSESSION NOTICE DATED 30.10.2023 ISSUED BY THE 1ST RESPONDENT. Exhibit P3 A TRUE COPY OF THE SECURITIZATION APPLICATION NO. 716/2023 DATED 10.12.2023 OF THE DEBT RECOVERY TRIBUNAL II, ERNAKULAM. Exhibit P4 A TRUE COPY OF THE NOTICE DATED 08.01.2024 BY THE 1ST RESPONDENT BANK. Exhibit P5 A MANUSCRIPT OF THE PROCEEDINGS DATED 23.02.2024 OF THE DEBT RECOVERY TRIBUNAL II, ERNAKULAM Exhibit P6 A MANUSCRIPT OF THE PROCEEDINGS DATED 19.08.2024 OF THE DEBT RECOVERY TRIBUNAL II, ERNAKULAM Exhibit P7 A TRUE COPY OF THE NOTICE DATED 19.02.2025 ISSUED BY THE ADVOCATE COMMISSIONER