IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN WEDNESDAY, THE 21ST JANUARY 2009 / 1ST MAGHA 1930 WP(C).No. 1923 of 2009(D) ------------------------- PETITIONERS: --------------- 1. P.MOHANAN, S/O.ARAMUGHAN, PANACHIKKAL, CHULLIPPARA POST, VALAKKULAM, MALAPPURAM DISTRICT. 2. CHILLA ALIAS AMMU, W/O.ARAMUGHAN, -DO-, -DO-. BY ADV. SRI.K.P.SUDHEER SRI.T.P.RAMACHANDRAN (THACHETH) SMT.P.JAYALAKSHMI RESPONDENT: --------------- THE KOTTAKKAL CO-OPERATIVE URBAN BANK LIMITED NO. 1378, HEAD OFFICE-KOTTAPPADY, KOTTAKKAL, MALAPPURAM DISTRICT, REPRESENTED BY ITS AUTHORISED OFFICER/GENERAL MANAGER. ADV. SRI.DEVAPRASANTH.P.J. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 21/01/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOTTATHIL B.RADHAKRISHNAN,J. - - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No.1923 of 2009 - - - - - - - - - - - - - - - - - - - - - - - - - Dated: 21st January, 2009 JUDGMENT The petitioners are debtors of the respondent-Bank. They filed S.A.54/08 before the Debt Recovery Tribunal challenging action taken against them in terms of a possession notice dated 7.2.2008. The petitioners state that they had contended before the Tribunal in that proceeding that they were not served any notice under Section 13(2) of the SARFAESI Act. Ext.P5 order was issued by the Tribunal allowing that securitization application, essentially on the ground that the possession notice dated 7.2.2008 was not published within 7 days as enjoined by the amendment to Rule 8(2) of the Security Interest (Enforcement) Rules, 2002. Though that final order was on the admission of the Bank on that issue, the said order deals only with that issue. It does not answer, either way, on any plea of the applicants therein that they were not issued notice under Section 13 (2) of the Act. But the fact remains that the Tribunal set aside only the possession notice dated 7.2.2008 and all further proceedings initiated subsequent thereto. In that situation, the Bank proceeded with further action on the basis that Section 13(2) notice had already been issued later. This led to the publication of Ext.P7 notice in W.P.C.No.1923/09 - 2 - newspaper. This is under challenge on the ground that no notice under Section 13(2) was issued and that Ext.P7 has been published even without delivering that notice, to the petitioners and affixing in the property notice as provided for in Rule 8(1) of the Security Interest (Enforcement) Rules, 2002. It is also contended that Ext.P6 issued by the petitioners seeking ten instalments to pay off the entire outstandings was not replied by the Bank. 2. Learned counsel for the respondent-Bank states that as per the records of the Bank, Ext.P6 dated 30.6.2008 was promptly replied, deferring action without any condition for three months till 30.9.2008. Counsel also states that the Bank is in possession of evidence to show that the reply to Ext.P6 were delivered independently to both the petitioners. He refutes the allegation that notice under Section 13(2) was not issued. He also points out that, if challenged, the Bank can produce before the court materials to show the proper action taken under Rule 8(2) of the Rules. 3. The aforesaid conflict of contentions essentially shows that this would be an abundantly fit case for being left out of writ jurisdiction relegating the parties to the statutory remedies under Section 17 of the Act. 4. In the aforesaid situation, learned counsel for the petitioners W.P.C.No.1923/09 - 3 - stated that even in Ext.P6 the request was only for an opportunity to fix the outstanding instalments and that the petitioners are not interested in dragging on the matter. Taking that into consideration and the fact that the petitioners would not avail their right to challenge the Debt Recovery Tribunal under Section 17 of the Act, I permit the petitioners to pay off the outstandings and avoid further dispossession. Accordingly, the writ petition is ordered directing that if the petitioners remit an amount of Rs.1,85,000/- within a period of one month from now and continues to remit at the rate of Rs.30,000/- per month, the impugned dispossession action will stand deferred and ultimately dropped on full satisfaction of the total outstanding. It is further ordered that any expenditure incurred in connection with the possession notice which was quashed by the Tribunal and in the conduct of S.A.No.54/08 shall not be saddled on the petitioners. If there is any default in remitting any of the instalments as aforesaid, the benefit of this order will stand automatically recalled and the respondent-Bank will be at liberty to proceed with further action forthwith. srd THOTTATHIL B.RADHAKRISHNAN, JUDGE W.P.C.No.1923/09 - 4 -