IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN WEDNESDAY, THE 10TH DECEMBER 2008 / 19TH AGRAHAYANA 1930 WP(C).No. 36049 of 2008(N) --------------------------------------- PETITIONERS: --------------------- 1. SANJAY OMAR MAMMUKUTTY, S/O.MAMMUKUTTY, AGED 34 YEARS, RESIDING AT THAIPPARAMBIL HOUSE, ACHANVEETTIL ROAD, S.R.M ROAD, KOCHI - 682 018 2. REHNA SANJAY,W/O.SANJAY OMAR MAMMUTKUTTY, AGED 27 YEARS, THAIPPARAMBIL HOUSE, ACHANVEETTIL ROAD, S.R.M ROAD, KOCHI - 682 018. BY ADV. SRI.P.M.ZIRAJ. RESPONDENTS: ----------------------- 1. UNION OF INDIA, REPRESENTED BY SECRETARY FOR FINANCE, NEW DELHI, 2. RESERVE BANK OF INDIA, MUMBAI, REP. BY ITS GOVERNOR. 3. UCO BANK, KAVERI BUILDING, CLOTH BAZAAR ROAD, ERNAKULAM, REPRESENTED BY ITS BRANCH MANAGER. *ADDL. RESPONDENTS 4 & 5 IMPLEADED: *4. BEEVI, WIFE OF MAMMUKUTTY, AGED 55 YEARS, RESIDING AT THAIPPARAMBIL HOUSE, ACHANVEETTIL ROAD, S.R.M. ROAD, KOCHI-682 018, ERNAKULAM VILLAGE, KANAYANNUR TALUK, ERNAKULAM DISTRICT. *5. MALAYA SPONZA HAVING ITS OFFICE AT Y.M.C.A JUNCTION, CHITTOOR ROAD, ERNAKULAM, REPRESENTED BY ITS PROPRIETOR SANJAY OMAR MAMMUKUTTY. *ADDL. RESPONDENTS 4 & 5 ARE IMPLEADED AS PER ORDER DATED 10/12/2008 IN I.A. NO. 15728/2008. R1 BY SRI. P. PARAMESWARAN NAIR, ASST. S.G, R3 BYADV. SRI. GEORGE K. VARGHESE, S.C, ADDL.R4 & R5 BY ADV. SRI.K.NIKHIL NAENDRA NATH. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 10/12/2008,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: prv. THOTTATHIL B. RADHAKRISHNAN, J. = = = = = = = = = = = = = = = = = = = = = = = = W.P.(C).No.36049 of 2008-N = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 10th day of December, 2008. JUDGMENT 1.The petitioners availed a loan from the third respondent. They defaulted in repayment of the outstandings. The account was treated as sticky in so far as it was classified as one which is non-performing asset on account of the fact that the operation and conduct of the financial assistance/credit facilities have become irregular. The total outstandings fixed for recovery is an amount of Rs.29.35 lacs. Out of that, the petitioners state that they have paid an amount of Rs.5,50,000/-. Obviously, the interest on the total accruals will also continue to be added on. 2.In opposition to the request of the petitioners WP(C)36049/08 -: 2 :- for interference with the impugned proceedings and to re-schedule the transaction even by providing some time to stabilize the account, the learned counsel for the bank states, on instructions, that though not specifically stated in the notices under Sections 13(2) and 13(4) etc., according to the bank, it is apparently a case where the petitioners have defrauded the bank in as much as the establishment M/s.Malaya Sponza is one belonging to a firm in which one Aboobacker is the Managing Partner and that the petitioners had fabricated certain documents etc. and the bank has filed Complaint Nos.101/2008 and 102/2008 to the ADGP(Crimes), Thiruvananthapuram. The learned counsel for the bank has shown me a receipt issued from the Office of the ADGP (Crimes) acknowledging receipt of the said complaints. I have gone through the copy of one of the complaints dated 19th July, 2008. I, however, deter from recording the averments in the complaint and also from making any statement in this judgment touching the merits or demerits WP(C)36049/08 -: 3 :- of the allegations in that complaint. The parties have to stand regulated by appropriate procedure under the criminal laws and before the different courts in terms of the laws. All such issues are left open. 3.With the plea of the bank, I do not deem it appropriate for this Court to direct the bank to consider any re-scheduling or allowing the loan to be revived. This will be compelling the bank to enter a customer against whom the bank has filed a criminal complaint. However, the bank has to get back the funds that it has released and also the accruals thereon. It is submitted on behalf of the petitioners that if the petitioners get a breathing time, they will be able to pay off the entire outstandings. 4.Hence, leaving open all other contentions and foreclosing the petitioners from moving the DRT or other court seeking redressal against any of the measures taken under the SARFAESI Act, this WP(C)36049/08 -: 4 :- writ petition is ordered in the following manner: (a)If the petitioners deposit an amount of Rs.10 lacs within three weeks and continue to deposit at the rate of Rs.8.5 lacs on or before the 25th of every month commencing from January, 2009 and thereby wipe off the entire transactions by March, 2009, the further distress action will be dropped. (b)The petitioners will, immediately, provide access to the bank officials to the premises of the establishment M/s.Malaya Sponza to take account of the stock in trade. However, it is clarified that if the bank is obstructed by any other person, including the aforesaid Aboobacker or any of his representatives, the matter would be left there. (c)If no deposit is made, the properties belonging to the petitioners, which are WP(C)36049/08 -: 5 :- offered as security interests, can be proceeded against in accordance with law. THOTTATHIL B. RADHAKRISHNAN, JUDGE. Sha/121208