IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN WEDNESDAY, THE 24TH SEPTEMBER 2008 / 2ND ASWINA 1930 WP(C).No. 20150 of 2008(W) --------------------------------------- PETITIONER: ------------------- SRI. JOMON JOHN, RESIDING AT JEES HOUSE, PUTHOOPARAMBIL, SEA VIEW WARD, ALAPPUZHA 688 012. BY ADV. SRI.S.SANAL KUMAR SMT.BHAVANA VELAYUDHAN RESPONDENTS: ----------------------- 1. VIJAYA BANK REPRESENTED BY ITS BRANCH MANAGER, BRANCH OFFICER, CHANDRA SQURE, CULLEN ROAD, ALAPPUZHA. 2. THE REGIONAL MANAGER, VIJAYA BANK, REGIONAL OFFICE, 1ST FLOOR, JOSE ANNEX, JOSE JUNCTION, M.G. ROAD, ERNAKULAM. ADV. SRI.K.ANAND,SC, VIJAYA BANK FOR R1 SMT.LATHA KRISHNAN,SC, VIJAYA BANK FOR R1 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 24/09/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOTTATHIL B. RADHAKRISHNAN, J. ----------------------------------------------------------------------- W.P.(C) NO.20150 OF 2008 (W) ----------------------------------------------------------------------- Dated this the 24th day of October, 2008 J U D G M E N T This writ petition is filed challenging action taken by the first respondent bank by moving an application under Section 14 of the SARFAESI Act, in short the “Act”, before the Chief Judicial Magistrate. The predominant ground or grounds raised in the writ petition related to a question as to whether the Chief Judicial Magistrate is a Metropolitan Magistrate for the purpose of Section 14 of the Act. That issue stands answered against the interest of the petitioner by the Division Bench of this Court in W.A No.1817/2008. Bereft of that, the only plea is that the petitioner had been making prompt remittances and there was default from September, 2007 owing to failure of the appropriate financial flow in his business. That by itself is no ground, apart from the fact that no material is really on record to show the total failure of the business. Another plea is that the reply of the petitioner was answered by the bank by giving a single line reply W.P.(C) No.20150/2008 - 2 - in the form of Ext.P4. In that context, I may refer to Ext.P3 where the request is for allowing him to continue the MLHL facility and to shift the C.C. Limit of the petitioner to a new firm which he has started. He wants the bank to grant him an additional home improvement loan and has requested the bank to re-schedule the facility in such a manner that the total EMI will come to Rs.43,500/, which he states, would be a “cake-walk” for him. These are matters, which are, essentially, no reply to the action taken under Section 13(2) of the Act or the issue raised thereby, but only a plea to the commercial wisdom of the bank. If the bank has not acceded to that request of the petitioner, it is not within the domain of this Court to enter into any adjudication on that issue. The aforesaid scenario discloses that there is no jurisdictional error or legal infirmity in the impugned proceedings. It is a matter of record that the petitioner had not paid the amount of Rupees two lakhs, to sustain the interim order even on enlargement of time being granted. Having regard to the totality of the facts and circumstances and taking into consideration of the entire amount involved in the W.P.(C) No.20150/2008 - 3 - recovery proceedings and having heard the learned counsel for the parties, it is ordered that the petitioner will be given a last opportunity by permitting him to pay off the entire outstandings in five equal instalments, payable on or before the 10th of every month, commencing from October 2008 including all accruals. To aid such process, it is directed that if the petitioner pays the amount as aforesaid, the dispossession through the process of Section 14 of the Act shall stand deferred. However, if there is any default in remitting any of the instalments as afore-directed the distress action will be immediately enforced and the petitioner dispossessed accordingly, without any further notice. Sd/- THOTTATHIL B. RADHAKRISHNAN, JUDGE skr/24/9 // True copy // P.A. to Judge.