IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM WEDNESDAY, THE 22ND JUNE 2011 / 1ST ASHADHA 1933 WP(C).No. 6832 of 2011(D) ------------------------- PETITIONER(S): --------------- P.BHARATHAN,S/O.KELU,PANANGAVIL HOUSE, THANA.P.O,KANNUR. BY ADV. SRI.K.MOHANAKANNAN SMT.A.R.PRAVITHA SMT.D.S.THUSHARA SMT.RASHMI RAVINDRAN RESPONDENT(S): --------------- 1. CITY UNION BANK LTD,KANNUR BRANCH, REPRESENTED BY ITS MANAGER-670O01. 2. AUTHORISED OFFICER APPOINTED UNDER THE SARFAESI ACT,FOR CITY UNION BANK LTD, KANNUR-670 003. 3. CITY UNION BANK LTD,CENTRAL OFFICER, 149,T.S.R.BIG STREET,KUMBAKONAM,TAMIL NADU-612001. ADV. SRI.P.SHRIHARI FOR R1 SMT.P.VANI FOR R1 SRI.P.SHRIHARI FOR R1 SMT.P.VANI FOR R1 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 22/06/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 6832 of 2011(D) : 2 : APPENDIX PETITIONER'S EXHIBITS: EXT.P1 : COPY OF THE NOTICE DTD.5.7.2010 EXT.P2 : COPY OF THE PROCEEDINGS PUBLISHED IN MALAYALA MANORAMA DAILY DTD.9.12.2010 EXT.P3 : COPY OF THE POSSESSION NOTICE PUBLISHED BY THE BANK ON 3.12.2010 EXT.P4 : COPY OF THE ORDER PASSED IN THE APPLICATION FOR INJUNCTION FILED BY THE PLAINTIFF DTD.17.2.2011. EXT.P5 : COPY OF THE LETTER SENT BY THE RESPONDENT BANK ON 16.12.2010 EXT.P6 : COPY OF THE TENDER-CUM-SALE NOTICE DTD.7.2.2011 EXT.P7: COPY OF THE RECEIPT DTD.11.3.2011. RESPONDENT'S EXHIBITS: EXT.R1(A) : COPY OF THE CERTIFIED COPY OF STATEMENT OF ACCOUNT IN RESPECT TO LOAN ACCOUNT NO.336872. EXT.R1(B) : COPY OF THE CERTIFIED COPY OF STATEMENT OF ACCOUNT IN RESPECT TO LOAN ACCOUNT NO.381431. EXT.R1(C) : COPY OF THE RENT AGREEMENT DTD.15.9.2010 ENTERED BETWEEN THE PETITIONER AS FIRST PARTY AND K.MOIDEEN KUTTY AND SHAJI AS SECOND PARTIES. EXT.R1(D) : COPY OF THE RENT AGREEMENT DTD.15.9.2010 EXECUTED BY K.MOIDEEN KUTTY AND SHAJI IN FAVOUR OF THE PETITIONER. //TRUE COPY// P.A TO JUDGE C.K.ABDUL REHIM, J --------------------------------------- W.P(C) No.6832 of 2011-D ---------------------------------------- Dated this the 22nd day of June, 2011. J U D G M E N T Proceedings initiated under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI Act), consequent to default committed in repaying a cash credit facility availed by the firm 'M/s.Bharathan Builders', in which the petitioner and his daughter are partners, is the subject matter of challenge in this writ petition. The immovable property, which is the secured asset of the loan transaction has been proceeded against. Through Ext.P6, auction sale of the property in question was proclaimed. At that stage the petitioner is approaching this court seeking to interdict with the proceedings, on the ground that the coercive steps were pursued without permitting time requested by the petitioner for clearing payment of the amounts overdue. 2. Eventhough this Court was not inclined to interfere, on the basis of persuasive submission made by W.P(C) No.6832 of 2011-D 2 learned counsel, promising payment of a substantial amount, the sale was directed to be deferred, subject to condition of the petitioner remitting a sum of Rs.20 lakhs on or before 14.3.2011. Subsequently, the said interim order was extended imposing condition for payment of a further sum of Rs.10 lakhs on or before 20.5.2011. It is reported that all the stipulations were already complied with. 3. Heard; learned counsel appearing for the respondents. It is submitted that, inspite of payment of the amounts as stated above, there is still balance remaining overdue for payment to the tune of around Rs.10 lakhs. However, it is conceded that if the petitioner remits the amounts remaining overdue, a restructuring of the loan can be permitted and the petitioner will be allowed to make payment of the remaining amount in instalments. 4. Eventhough interference of this Court may not be justified considering the statutory remedy provided under the SARFAESI Act, I am of the view that the petitioner can be permitted to regularise the account in view of the W.P(C) No.6832 of 2011-D 3 circumstances as stated above. The said relief is granted subject to condition that the petitioner is precluded from raising any subsequent challenge against the proceedings. 5. Therefore, the writ petition is disposed of directing the respondents to keep in abeyance all further proceedings for dispossession and sale of the secured asset, subject to condition of the petitioner remitting the entire balance remaining overdue for payment (defaulted monthly instalments along with interest and expenses if any due) in 2 (two) equal monthly instalments, falling due on or before 15.8.2011 and on before 15.9.2011 along with payment of amounts due for the respective months. 6. If payment of amount in default is regularised as directed above, the respondent shall permit the petitioner to continue payment of the balance amount by re-structuring the schedule on reasonable terms. 7. If any approach is made by the petitioner for getting a copy of the statement of accounts, the respondents shall furnish the same and the petitioner will be at liberty to W.P(C) No.6832 of 2011-D 4 point out mistake if any in crediting payments already effected. If any genuine mistake is pointed out in this regard, the respondent shall take appropriate steps for correcting such mistake. 8. It is made clear that on the event of default in payment of any one of the instalments as stipulated above or any future monthly instalments, the respondents will be free to proceed with further steps. It is further made clear that the above relief is granted subject to condition that the petitioner is precluded from raising any subsequent challenge against the proceedings. C.K.ABDUL REHIM JUDGE ab