IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM FRIDAY, THE 28TH JANUARY 2011 / 8TH MAGHA 1932 WP(C).No. 32618 of 2010(B) -------------------------- PETITIONER: ------------------- LINCY FERNANDEZ, STHANAMAM VEETTIL, KARAKKAL PO,THIRUVALLA, PATHANAMTHITTA. BY ADV. SRI.R.SANTHOSH BABU RESPONDENTS: ---------------------- 1. THE STATE BANK OF TRAVANCORE, REP. BY ITS CHAIRMAN AND MANAGING DIRECTOR, HEAD OFFICE, THIRUVANANTHAPURAM.695001 2. CHIEF MANAGER/AUTHORISED OFFICER, REGION IV ZONAL OFFICE, SBT KOTTAYAM 686001 3. THE BRANCH MANAGER,SBT KARAKKAL BRANCH KARAKKAL,THIRUVALLA . 689108 4. ALEXANDER FERNANDEZ,STHANAM VEETTIL, KARAKKAL PO,THIRUVALLA.689108 ADDL.R5 IMPLEADED ------------------------------- ADDL. R5. R.SANTHOSH, POTHIRIKKAL, CHIRARAYIL HOUSE PERINGARA P.O., THIRUVALLA. ADDITIONAL 5TH RESPONDENT IS IMPLEADED AS PER ORDER DATED 22.11.2010 IN IA 16180/2010 R1 BY ADV. SRI.K.S.DILIP R5 BY ADVS. SRI.C.S.MANU SRI.S.K.PREMRAJ THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 28/01/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: VK C.K.ABDUL REHIM, J. ------------------------------------------- W.P.(C).No.32618 of 2010 ------------------------------------------- Dated this the 28th day of January, 2011 J U D G M E N T ---------------------- Petitioner is challenging proceedings initiated under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI Act) and the proclamation of sale published under Ext.P2 with respect to sale of the mortgaged property, which is the secured asset as far as a housing loan availed by the petitioner from respondents 1 to 3. The 4th respondent herein, who is the husband of the petitioner is the guarantor for the loan transaction. During pendency of this writ petition, sale has taken place as proclaimed under Ext.P2 and the additional 5th respondent who is the auction bider was impleaded. But confirmation of the sale was stayed by this court insisting condition upon the petitioner for making payment of a sum of Rs.3 lakhs. It is reported that in compliance the petitioner had already remitted the amount. 2. In a statement filed on behalf of respondents 1 to 3 it is mentioned that the sale has taken place for a sum of W.P.(C).32618/10 -2- Rs.3,15,729/- and the auction bidder (5th respondent) had already deposited the entire amount as on 28.9.2010. But confirmation of sale was kept pending in view of the interim order issued. 3. Learned counsel for the petitioner submits that she is ready and willing to pay whatever balance amount due to respondents 1 to 3 and further she is willing to make payment of a reasonable amount of interest to the additional 5th respondent, with respect to the deposit made by him. On the above basis, the petitioner is seeking indulgence in permitting settlement of accounts in order to save the property in question from being sold. 4. Learned counsel appearing for the 5th respondent contends through the counter affidavit filed, that there is no legal or justifiable reason to cancel the sale. It is mentioned that he had already deposited the entire bid amount. It is also pointed out that the petitioner has not chosen to avail remedy provided under Section 17(1) of the SARFAESI Act. 5. In a statement filed on behalf of respondents 1 to 3 it is mentioned that, after adjusting the sale amount there is still an outstanding balance of Rs.46,022/- along with expenses incurred. W.P.(C).32618/10 -3- 6. Considering the rival contentions I am of the view that since the sale has not yet been confirmed, the 5th respondent could not be permitted to raise objections against cancelling the sale. At the same time, it is only justifiable that he should be compensated by way of reasonable interest to be paid on the amount in deposit. In view of the appeal made by the petitioner and also in view of the substantial payments already effected by her, I am of the opinion that indulgence can be shown in permitting the petitioner to save the property from being sold by settling payment of the account in question. 7. Accordingly the writ petition is disposed of directing respondents 1 to 3 to treat the sale made on 13.9.2010 as cancelled, subject to condition of the petitioner remitting the entire balance outstanding payment due to respondents 1 to 3 along with interest payable on the sum of Rs.3,15,729/- at the rate of 12% per annum calculated from 28.9.2010 till the date of repayment, which I order to be paid to the additional 5th respondent while refunding the amount. 8. The above direction shall be complied with by the petitioner on or before 28.2.2011. It is left open to the petitioner to seek waiver of interest/penal interest and expenses to the W.P.(C).32618/10 -4- possible extent and it is left open to respondents 1 to 3 to consider such request favourably. 9. If any default is committed in complying with the above said conditions, respondents 1 to 3 will be at liberty to confirm the sale in favour of the 5th respondent and to proceed with further steps accordingly. C.K.ABDUL REHIM, JUDGE. okb