IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON WEDNESDAY, THE 24TH FEBRUARY 2010 / 5TH PHALGUNA 1931 WP(C).No. 1622 of 2010(C) ------------------------- PETITIONER: --------------- CHERKUZHI PATHU, W/O.ABDULLA IBRAHIM, VIII/404, PUTHUR HOUSE, ATHIYODI POST, KOORACHUNDU, KOYILANDY, KOZHIKODE-673035. BY ADV. SMT.LATHA PRABHAKARAN SRI.K.M.JAMALUDHEEN SRI.P.T.SRINARAYANANUNNI RESPONDENTS: --------------- 1. PUNJAB NATIONAL BANK, CIRCLE OFFICE, SHATHABDI BHAVAN, MINI BY PASS ROAD, GOVINDAPURAM, KOZHIKODE-673016, REPRESENTED BY ITS CHIEF MANAGER/AUTHORIZED OFFICER. 2. PUNJAB NATIONAL BANK, PALLIKANDY, BRANCH OFFICE, FRANCIS ROAD, JUNCTION, KOZHIKODE, REPRESENTED BY ITS BRANCH MANAGER. 3. P.VALSARAJ, S/O.BALAN MASTER, PROPRIETOR, APPOLO SCANNING & X-RAYS DIAGNOSTIC CENTRE, RESIDING AT VIII/176/BALA VIHAR, MUCHUKUNNU, NEAR PISHARIKAVU, KOLLAM, KOYILANDY, KOZHIKODE- 673035. R3 BY ADV. SRI.B.V.JOY SANKER THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 24/02/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.R. RAMACHANDRA MENON, J. .............................................................................. W.P.(C) No. 1622 OF 2010 ......................................................................... Dated this the 24th February, 2010 J U D G M E N T The petitioner has approached this Court challenging the steps taken by the respondents invoking the machinery under the SARFAESI Act, mainly contending the he was only a surety to the loan availed by the third respondent in connection with the purchase of a 'Scanner', while the respondent Bank was not at all eager to take any steps to realize the due amount from the principal debtor or by moving against the property, over which rights and interests have been created by the Bank. 2. When the matter came up for consideration before this Court, an interim order was passed on 18.01.2010 granting interim stay for a period of one month against the properties of the petitioner, however making it clear that it was never to bar the way of the respondents 1 and 2 in proceeding against the third respondent or against the properties including the 'Scanner' stated as purchased by the third respondent. Subsequently the interim order was extended on 17.02.2010. 3. The learned Counsel appearing the third respondent W.P.(C) No. 1622 OF 2010 2 submits that the third respondent has filed a counter affidavit today ( which is yet to form part of the records), stating that, out of the loan availed by the third respondent, a sum of Rs. Five lakhs was borrowed by the petitioner himself; which aspect has been conspicuously suppressed in the Writ Petition. Various other averments have also been raised, praying that no interference is called for. 4. The learned Counsel for the respondent Bank submits that the right and interests of the Bank to proceed against the guarantor, even without proceeding against the principal debtor is very much conferred under the statute itself, i.e., as per Section13(7) of the Act and that the idea and understanding of the petitioner to the contrary is quite wrong and misconceived. 5. The learned Counsel for the petitioner submits that the factual position as put forth by the third respondent is not correct, as pointed out in the reply affidavit. But still, the petitioner is more eager to wipe out the entire liability at the earliest and the petitioner might be permitted to clear the same by granting some installments, with liberty to proceed against the third respondent in the due course. W.P.(C) No. 1622 OF 2010 3 6. After hearing all the parties concerned, this Court does not find it necessary to keep the matter pending and the petitioner is permitted to clear the entire liability by way of 'six' equal monthly installments, the first of which shall be effected on or before 10.03.2010, to be followed by similar installments to be effected on or before the 10th of the succeeding months. It is made clear the if any default is committed in effecting the installments as above, the respondent Bank will be at liberty to proceed against the petitioner, pursuing the coercive steps for realization of the entire amount in a lump sum, from the stage where it stands now. It is also made clear that the rights and liberties of the petitioner against the third respondent are left open. The amount if any paid by the third respondent shall also be given due credit to and only the balance amount shall be recovered from the petitioner. The Writ Petition is disposed of as above. P.R. RAMACHANDRA MENON, JUDGE. lk