IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 25.01.2017 CORAM:
THE HON'BLE MR.JUSTICE S.MANIKUMAR AND THE HON'BLE MR.JUSTICE M.GOVINDARAJ
Writ Petition No.23569 of 2016 and
WMP No.20192 of 2016
M/s.AYS Fruits Proprietor Mr.Y.Suvaikin Alexander Shop No.T/F4, Anna Fruit Market MMDA Whole Sale Market Koyambedu Chennai - 600 092 Petitioner vs.
1. The State Bank of India SME Siruthozhil Branch, Chennai KRM Tower V Floor, No.1, Harrington Road Chetpet, Chennai - 31
2. The State Bank of India RACPC No.16, Whannels Road Egmore, Chennai - 600 008 Respondents WRIT Petition filed under Article 226 of the Constitution of India, to issue a Writ of Certiorarified Mandamus calling for the records relating to the impugned letter dated 16.06.2016 issued by the 1st respondent, quash the same and direct the respondents herein to extend the moratorium period and reschedule the repayment of the amounts due under the petitioner's Account Nos.30330850222 (cash credit), 34583583619 (Letter of Credit) and 33856126334 (Housing Loan) in the light of the orders passed by this Honourable Court in W.P.No.39329 of 2015 besides forbearing the respondents from pursuing the recovery actions with respect to the petitioner's Account Nos.30330850222 (cash credit), 34583583619 (Letter of Credit) and 33856126334 (Housing Loan).
For Petitioner :Mr.P.Mani For Respondents :Mr.M.L.Ganesh
ORDER
(delivered by S.MANIKUMAR, J) What is impugned in the instant writ petition is only a letter dated 16.06.2016 issued by State Bank of India, SME Siruthozhil Branch Chennai, Chetpet, to M/s.AYS Fruits, namely the petitioner herein/borrower and the same is extracted hereunder:
State Bank of India SME Siruthozhil Branch Chennai, KRM Tower, V Floor, No.1, Harrington Road, Chetpet, Chennai - 600 031 "M/s AYS Fruits 16.06.2016 Proprietor Mr Y Suvaikin Alexander Shop No T/F 4, Anna Fruit Market MMDA Whole Sale Market Koyambedu Chennai 600 092 Dear Sir, Cash Credit Account No.30330850222 We refer to your request letter dated 09.06.2016 for extension/restructuring of the account. In this connection, we have to advise that the account became NPA well before the Chennai floods. The said account was stamped as a Non Performing Asset (NPA) on 29.11.2015 which implies that the account was irregular for the preceding 90 days ie from August 2015. This was advised to you through our communication dated 23.07.2015, 31.11.2015 (30.11.2015) and 15.12.2015. We have not received any intimation from your side with regard to the damages caused to the unit during the floods. Therefore it is clear that the account becoming NPA has no connection whatsoever with the December 2015 floods in Chennai.
Hence we request you to regularize the account at the earliest to avoid further action.
Yours faithfully Assistant General Manager"
2. On 18.01.2017, we passed the following order:
"Letter, dated 16/6/2016, of State Bank of India, Chennai/first respondent, addressed to the writ petitioner, is extracted hereunder:-
“We refer to your request letter dated 9/6/2016 for extension/restructuring of the account in this connection, we have to advise that the account became NPA well before the Chennai floods. The said account was stamped as a Non Performing Asset (NPA) on 29/11/2015 which implies that the account was irregular for the preceeding 90 days i.e., from August 2015. This was advised to you through our communication dated 23/7/2015, 31/11/2015 and 15/12/2015. We have not received any intimation from your side with regard to the damages caused to the Unit during the floods. Therefore, it is clear that the account becoming NPA has no connection whatsoever with the December 2015 floods in Chennai.
Hence we request you to regularize the account at the earliest to avoid further action.”
2. Record of proceeding shows that while ordering notice to the respondents, returnable in two weeks, a Hon'ble Division Bench of this Court, vide order, dated 11/7/2016, has granted interim stay of confirmation of the auction sale, for a period of two weeks, subject to payment of a sum of Rs.5 lakhs, within a week, from the date of order.
3. On this day, when the matter is listed for further hearing, Mr.M.L.Ganesh, learned counsel for the respondent Bank submitted that interim order has not been complied with.
4. Mr.P.Mani, learned counsel for the petitioner is not in a position either to rebut or acknowledge the same. However, having regard to the assertion made by the learned counsel for the Bank, we are inclined to vacate the interim order stated supra.
5. Call on 25/1/2017, on the top of the list."
2. Reverting, Mr.P.Mani, learned counsel for the petitioner, submitted that there is no instruction from his client.
3. Assistant General Manager, State Bank of India, SME Siruthozhil Branch, Chennai - 31, namely, the first respondent herein, has filed a counter affidavit, setting out the details of the loan availed, default and steps taken for recovery. Bank has further contended that though possession notice dated 14.03.2016 under sub clause (4) of Section 13 of the SARFAESI Act, 2002, has been issued, and symbolic possession of the secured property has been taken, the borrower has not chosen to challenge the same and instead, sought a writ of certiorari, to quash the letter dated 16.06.2016, directing payment and regularisation of accounts, and to avoid further action. Bank has contended further that the letter dated 16.06.2016 does not give rise to a cause, for the petitioner to maintain the writ petition.
4. Having regard to the statutory provisions, we are in agreement with the contention made by the bank. Contention that no steps have been taken to challenge the possession notice, has not been refuted by the petitioner. Equity also cannot be extended in favour of the writ petitioner, who has failed to comply with the interim order. There is no merit in the writ petition.
Accordingly, the writ petition is dismissed. However, there shall be no order as to cost. Consequently, the connected writ miscellaneous petition is closed.
Internet : Yes/No Index : Yes/No asr (S.M.K., J.) (M.G.R., J.) 25.01.2017 S.MANIKUMAR, J.
AND M.GOVINDARAJ, J.
asr
W.P.No.23569 of 2016
25.01.2017