IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM THURSDAY, THE 2ND JUNE 2011 / 12TH JYAISHTA 1933 WP(C).No. 10867 of 2011(G) -------------------------- PETITIONER(S): --------------- 1. C.A. BADULKHADER, S/O. AHAMMED, AGED 66, MELETH PADINJARE PUTHENPURAYIL HOUSE, CHELAKULAM, VENGOLA.P.O, PERUMBAVOOR, ERBNAKULAM DISTRICT - 683 554. 2. NABEESA ABDULKHADER, W/O.C.A. ABULKHADER, AGED 55, MELETH PADINJARE PUTHENPURAYIL HOUSE, CHELAKULAM, VENGOLA.P.O, PERUMBAVOOR, ERBNAKULAM DISTRICT - 683 554. 3. C.A. MAKKAR, S/O. C.A. ABULKHADER, AGED 30, MELETH PADINJARE PUTHENPURAYIL HOUSE, CHELAKULAM, VENGOLA.P.O, PERUMBAVOOR, ERBNAKULAM DISTRICT - 683 554. BY ADV. SMT.BABITHA THAMBI RESPONDENT(S): --------------- 1. THE UNION OF INDIA, REPRESENTED BY THE SECRETARY, MINISTRY OF FINANCE, NEW DELHI – 110 001. 2. THE FEDERAL BANK LIMITED, REPRESENTED BY ITS CHAIRMAN, REGISTERED OFFICE, FEDERAL TOWERS, ALUVA, ERNAKULAM DISTRICT - 683 101. 3. REGIONAL MANAGER, THE FEDERAL BANK LIMITED, REGIONAL OFFICE, FEDERAL TOWERS, ALUVA, ERNAKULAM DISTRICT - 682 101. 4. ASSISTANT GENERAL MANAGER, THE FEDERAL BANK LIMITED, PERUMBAVOOR BRANCH, PERUMBAVOOR, ERNAKULAM DISTRICT - 682 542. ADV. SRI.P.PARAMESWARAN NAIR,ASG OF INDIA FOR R1 SRI.A.ANTONY FOR R4 SMT.LEELAMMA ANTONY FOR R4 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 02/06/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: C.K.ABDUL REHIM, J --------------------------------------- W.P(C) No.10867 of 2011-G ---------------------------------------- Dated this the 2nd day of June, 2011. J U D G M E N T Consequent to default committed in repayment of different credit facilities availed by the petitioners from respondents 2 to 4, proceedings under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI Act) was initiated and the immovable property, which is the secured asset, was proceeded against. Ext.P5 is the notice issued intimating steps taken as contemplated under Section 13(4) of the Act. 2. Contention of the petitioners is that, the coercive steps of recovery has now been initiated without acceding to their request for permitting payment of the arrears in a phased manner within a reasonable time. It is also contended that the petitioners were not permitted to regularise the housing loan, repayment period of which has not been expired. W.P(C) No.10867 of 2011-G 2 3. Heard; counsel appearing for respondents 2 to 4. It was submitted that all the loan accounts are in chronic default and the petitioners have defaulted payment of consecutive instalments. However, learned counsel for the petitioners conceded that one among four loans has already been closed. 4. While entertaining this writ petition, this Court had issued an interim order on 5.4.2011, directing to keep in abeyance dispossession of the petitioners from the property , subject to condition of the petitioners remitting a sum of Rs.15 lakhs in two equal monthly instalments due on or before 30.4.2011 and 31.5.2011. It is reported that the condition stipulated has already been complied with. 5. However, in view of the effective remedy provided under Section 17(1) of the SARFAESI Act, it may not be proper and justified on the part of this Court to interdict with the proceedings. But learned counsel for the petitioners made an appeal to permit payment of the balance amount outstanding in a phased manner, within a W.P(C) No.10867 of 2011-G 3 reasonable time, on the basis of a specific undertaking that the petitioners are relinquishing all challenges raised against the proceedings and that they are not intending to pursue any statutory remedy. 6. Considering the limited plea raised, I am of the view that, eventhough interference on merits is not warranted, the petitioners can be permitted to pay off the liability in instalments within a reasonable time. 7. Accordingly, the writ petition is disposed of directing the respondents to keep in abeyance all further coercive steps for dispossession and sale of the property, subject to condition of the petitioners remitting the entire balance outstanding in the loan accounts in question, along with interest and expenses if any due, in 4 (four) equal monthly instalments, falling due on or before 30.6.2011 and on or before the last day of succeeding months. 8. It is made clear that the petitioner will be at liberty to approach respondents 3 and 4 seeking 'one time settlement' of the arrears by waiver of interest/penal W.P(C) No.10867 of 2011-G 4 interest/expenses to the possible extent. It is further made clear that the directions contained herein will not stand in the way of respondents considering such request and taking appropriate decision. 9. It is further made clear that on the event of default in payment of any one of the instalments as stipulated above, the respondents will be free to proceed with further steps. It is made clear that the above relief is granted subject to condition that the petitioners are precluded from raising any subsequent challenge against the proceedings initiated under the SARFAESI Act. C.K.ABDUL REHIM JUDGE ab