Kerala High Court Extends the Operation of Interim Orders

Report by- Riddhima Bhadauria

The Kerala High Court recently on 5th of August extended the operation of interim orders passed by the Court in view of the continuing COVID-19 pandemic (Court on its own motion: Suo Motu Proceedings – COVID-19 Pandemic v. State of Kerala). A three-Judge Bench of Chief Justice S Manikumar and Justices Shaji P Chaly and CT Ravikumar issued the order.

Issue

What are the measures taken up by the high court during the national lockdown of 21 days to control the spread of covid-19??

Facts of the Case

The suo motu writ petition was registered by the Court after it was brought to the Court’s notice that litigants were put to difficulty in approaching the Court amid the COVID-19 pandemic. The Court, noting that the situation in Kerala had not changed after its last Order, extended the life of its interim orders March 25 and May 18, which pertained to recoveries as well. The total lockdown imposed in the country resulted in immobilization of public at large and total stoppage of public transport, litigation found it difficult to vindicate their matters. So, the court deems it proper to provide directions in the instant suo motu writ petition.

State Bank of India had sought to be impleaded as an additional respondent in the Court’s suo motu writ kept pending to monitor issues arising out of the pandemic. The Bank group has sought to continue with recovery proceedings under the SARFAESI Act, 2002 initiated “much before” the outbreak of the pandemic. They were already initiated with respect to loan accounts which were classified as non- averments. Reserve bank of India has issued circular declaring the COVID 19 regulatory package by rescheduling the payments of all existing credit/loans.

The two annexures were issued by the reserve bank of India as ANNEXURE 1 and ANNEXURE 2. These two mentioned circulars reflect the policy not to stop the recovery proceedings. Section 35 A of banking regulation act,1949 covers the above-mentioned circulars under subordinate legislations.

The Canara bank filed a petition seeking to implement them as an additional respondent in the writ petition. Pertinently, Additional Advocate General Ranjith Thampan submitted that if the banks were permitted to proceed with recoveries, other lending institutions would follow suit, approaching the Court seeking to initiate recovery. The order followed a Special Leave Petition to the Supreme Court in respect of the Kerala High Court’s order concerning Public Sector Undertakings.

Judgement

The high court, as well as district courts in the district judiciary and tribunals, have granted an interim order for limited period and litigants, their respective counsels will not be in a position to approach the courts/tribunals for filing an application for extension during lockdown of 21 days.
Necessary orders have to be issued to enable litigants not to suffer from their inability to approach the court. therefore, on the exercise of article 226 and article 227, all interim orders passed by courts and tribunals are extended by the court for one month.
The state government, LSG institutions, the government of India and public sector undertaking owned and controlled by state/central government shall not take any coercive action as there is no opportunity for the person to approach the court.
Recovery proceedings by the government of India and public sector undertakings owned or controlled by the government of India, which was taken an appeal by the union of India in special leave petition, where the supreme court also granted the permission to file special leave petitions.
There should be a total shutdown of courts during the lockdown period.
In all recovery matters such as electricity, water, Akhbar and other matters the payment will be deferred and thereafter no recovery proceeding already initiated would not proceed till 30-04-2020 as counsel of ministers, the government of Kerala have decided.
Any order filed for extending /vacating an interim order and pending for orders in the court will be extended for one month.

Case law referred

ICICI Bank limited vs. Official Liquidator of APS star industries limited and others(2010)- held that the circulars issued by the reserve bank of India would fall within the ambit of subordinate legislation by virtue of section 35 A of the Banking Regulation Act, 1949 and that the government of India have not issued any other orders or institutions in this regard to the banks.

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