[SARFAESI Act] Kerala High Court Takes Humanitarian Approach, Defers Recovery Proceedings Against Comatose Entrepreneur In Wife's Plea

The court has also directed the Sub Divisional Magistrate/Revenue Divisional Officer to decide to grant limited guardianship under Section 14 of the Rights of Persons with Disabilities Act, 2016 to the petitioner-wife for disposing of her husband's property for clearing his liabilities.

The petitioner is the wife of a comatose patient and had approached the Court seeking permission to dispose of the properties in the name of her husband to clear the bank dues since recovery proceedings were initiated against him under the SARFAESI Act. She also seeks moratorium time for repayment of the loan and also seeks to reschedule his loan accounts.

Justice N Nagaresh stated that a humanitarian approach has to be taken since the petitioner's husband is now in a comatose state under the care of his wife and children.

“The petitioner's husband has absolutely no capacity or ability to act. The petitioner states that for the treatment and medicines of her husband, a minimum amount of ₹3 lakhs is required every month to keep him in the present state. In such circumstances, though respondents 1 and 2 have a statutory right to proceed for recovery of money advanced, the peculiar situation in this case calls for a humanitarian approach in the matter.”

The petitioner's husband was a successful entrepreneur heading many business projects in the country. He had availed loans for his business and was paying EMI's without any default.

In March 2021, the petitioner's husband collapsed and underwent brain surgery. She submitted before the Court that her husband had been lying in an unconscious state for the last more than 1.5 years and was completely unresponsive and in a comatose state. She has approached the Court stating that all the landed assets were in her husband's name and that she could clear his debts only by disposing of his properties.

The Court observed that the petitioner's husband is brain dead and falls under the ambit of the Rights of Persons with Disabilities Act.

It stated that as per Section 14 of the Act, limited guardianship could be provided to persons with disability who were unable to make legally binding decisions for themselves. It also stated that a government circular dated May 03, 2022, provides guidelines for granting limited guardianship under the Rights of Persons with Disabilities Act. The Court added that as per the guidelines, the Sub Divisional Magistrate could grant limited guardianship to a person with a disability so that the guardian could make legally binding decisions including property transfer. 

The Court stated that the petitioner had submitted an application before the authorities seeking limited guardianship of her husband to make legally binding decisions on his behalf for clearing his bank debts by disposing of his properties.

It said, “ In the circumstances, the competent authority under the Rights of Persons with Disabilities Act has a legal duty to consider the application for grant of limited guardianship submitted by the petitioner under Section 14 of the Act.”

Accordingly, the Court disposed of the writ petition.

Counsel for Petitioner: Advocate Babu S Nair, Smitha Babu

Counsel for Respondents: Senior Government Pleader Rekha C Nair, Senior Advocate K K Chandran, Advoactes Ambily S, Ruban Joe Toniyo, Mathew Joseph Balummel

Citation: 2024 LiveLaw (Ker) 184

Case title: Sudha V Mohan v The Authorized Officer

Case number: WP(C) NO. 37968 OF 2023

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