IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC TUESDAY, THE 5TH AUGUST 2008 / 14TH SRAVANA 1930 WP(C).No. 23335 of 2008(C) -------------------------- CMP.3978/2007 of C.J.M.,TRIVANDRUM .................... PETITIONER: ------------ P.LATHA, D/O MEENAKSHI, AGED 40 YEARS, VATTAVILAKATHU PUTNE VEEDU, KAITHOTTUKONAM, BALARAMAPURAM. BY ADV. SRI.AYYAPPAN SANKAR RESPONDENTS: ------------- STATE BANK OF TRAVANCORE, REGION - II, ZONAL OFFICE, KERALA STATE HOUSING BOARD BUILDING, SANTHI NAGAR,THIRUVANANTHAPURAM, REPRESENTED BY ITS AUTHORISED OFFICER, AND CHIEF MANAGER (ADVANCES). BY SC SHRI. SAJU VARGHESE THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 05/08/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ANTONY DOMINIC, J. -------------------------- W.P.(C) No. 23335 OF 2008 C -------------------------- Dated this the 5th August, 2008. JUDGMENT The petitioner had availed of a loan from the respondent- bank. Admittedly default was committed and the bank initiated proceedings under the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002, for short the 'Act'. Accordingly an application has been made by the bank before the Chief Judicial Magistrate Court, Thiruvananthapuram for an order under Section 14 of the Act. At that stage this writ petition has been filed challenging the proceedings. 2. Learned counsel for the petitioner submits that she is willing to regularise the loan by paying the amount in default and continue payment in terms of the agreement. Standing counsel for the bank submits that this is a clear case of cheating. According to him housing loan was availed and by utilising the funds availed of a building has been constructed in a property which has not been mortgaged to the bank. It is stated that subsequently default was WPC 23335/08 2 also committed and then proceedings were initiated. It is stated that finally they approached the Magistrate invoking the power under Section 14 of the Act and that the proposal is to proceed against the property mortgaged . 3. In so far as the request made for paying the amount in default and regularising the loan availed of, the standing counsel for the bank submits that the bank having recalled the loan are not interested in continuing the loan arrangement, particularly since the bank has been cheated by the petitioner. 4. Since the matter is admittedly governed by a contract between the parties and one of the contracting parties is unwilling to continue the contract, this Court will not be justified in issuing a positive direction compelling the Bank to continue the loan arrangement. 5. I have asked counsel for the petitioner whether the petitioner is interested to pay the loan amount in instalments and the answer was in the negative. 6. Admittedly default is committed and in that view of the WPC 23335/08 3 matter, the bank is entitled to proceed under the Act. On facts I am not satisfied that the bank has committed any illegality or arbitrariness warranting interference under Art.226 of the Constitution of India. Dismissed. ANTONY DOMINIC, JUDGE jj