IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN FRIDAY, THE 5TH DECEMBER 2008 / 14TH AGRAHAYANA 1930 WP(C).No. 25060 of 2008(G) -------------------------------------- SA.51/2007 of DEBT RECOVERY TRIBUNAL, ERNAKULAM .................... PETITIONER(S): ----------------------- 1. P.P.JOSEPH, AGED 48 YEARS, S/O.PETER, PULLUVATTAM, PAYAM.P.O, KANNUR DISTRICT. 2. ANNAKUTTY, AGED 42 YEARS, W/O.P.P.JOSEPH PULLUVATTAM, PAYAM.P.O, KANNUR DISTRICT. BY ADV. SRI.ZAKEER HUSSAIN SMT.K.A.SANGEETHA RESPONDENT(S): ------------------------- 1. THE AUTHORISED OFFICER, HOUSING FINANCIAL DEVELOPMENT CORPORATION LTD, HDFC HOUSE, RAVIPURAM JUNCTION, M.G.ROAD, ERNAKULAM. 2. HOUSING FINANCIAL DEVELOPMENT CORPORATION LTD, HDFC HOUSE, RAVIPURAM JUNCTION, M.G.ROAD, ERNAKULAM. 3. DISTRICT COLLECTOR, KANNUR DISTRICT. 4. SUPERINTENDENT OF POLICE, KANNUR DISTRICT. 5. TAHSILDAR, THALASSERY TALUK, KANNUR DISTRICT. 6. VILLAGE OFICER, PAYAM VILLAGE, KANNUR DISTRICT. ADV. SRI.K.K.CHANDRAN PILLAI, SC, HDFC FOR R1 & 2 GOVERNMENT PLEADER SRI.K.C.SANTHOSH KUMAR FOR R3 TO R6 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 05/12/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOTTATHIL B. RADHAKRISHNAN, J. = = = = = = = = = = = = = = = = = = = = = = = = W.P.(C).No.25060 of 2008-G = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 5th day of December, 2008. JUDGMENT The petitioners availed a loan from the second respondent. It is stated by the parties that HDFC essentially took over an existing loan and provided additional funds to the petitioners, who are teachers. Later on default, the second respondent initiated proceedings through the first respondent under the provisions of the SARFAESI Act. The petitioners filed S.A.51/2007 before the Debts Recovery Tribunal. The Tribunal refused an order of stay. The learned counsel for the creditor has shown me written undertakings to pay the entire amounts in instalments by the end of August, 2008. This was done by the petitioners when they were faced with actual dispossession by force through the State machinery. Thereafter, the petitioners filed this writ petition. The WP(C)25060/08 -: 2 :- HDFC is justified in taking the stand that they would not regularize the transaction, particularly when the cheques issued by the petitioners had bounced and also because, the transaction is essentially a taken over of an existing loan. The second petitioner is also employed and is drawing salary. There is no reason why the HDFC should be compelled to regularize the transaction. As against the total accruals of nearly Rs.8 lakhs, the petitioners had deposited an amount of Rs.1 lakh as per the interim order dated 14-10-2008, apart from an earlier remittance of Rs.1,83,000/-. On re- conciliation, the total outstandings would be, by now, around less than Rs.5.5 lakhs. Taking that into consideration, while repelling all contentions, this writ petition is ordered directing that if the petitioners deposit the entire balance amount in six equal monthly instalments payable on or before the last working day of every month commencing from December, 2008, the impugned distress action will be WP(C)25060/08 -: 3 :- deferred and dropped. If there is default in depositing any of the instalments as aforesaid, the benefits of this judgment will stand recalled and the writ petition will stand dismissed automatically enabling the respondents to forthwith proceed with further distress action without fresh notice to the petitioners. THOTTATHIL B. RADHAKRISHNAN, JUDGE. Sha/