IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN WEDNESDAY, THE 28TH SEPTEMBER 2011 / 6TH ASWINA 1933 WP(C).No. 31102 of 2008(C) -------------------------- PETITIONER(S): --------------- MINI.P., ADIMURIYIL HOUSE, MANGARAM, KONNI.P.O. BY ADV. SRI.BECHU KURIAN THOMAS RESPONDENT(S): --------------- 1. KERALA STATE CO-OPERATIVE BANK LTD, REPRESENTED BY ITS DEPUTY GENERAL MANAGER, COBANK TOWERS, PALAYAM, TRIVANDRUM 695033. 2. AUTHORIZED OFFICER, KERALA STATE CO-OPERATIVE BANK LTD, REGIONAL OFFICE, THIRUVANANTHAPURAM. 3. MR.PRADEEP KUMAR, MANAGING DIRECTOR, ADIMURIYIL TRADERS PRIVATE LIMITED, KONNI, MANGARAM, PATHANAMTHITTA. ADV. SRI.SAJU J.VALLYARA FOR R3 SRI.NAGARAJ NARAYANAN,SC,K.S.CO-OP BANK FOR R1, R2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 28/09/2011, ALONG WITH WPC NO. 37099 OF 2010 & WPC NO. 36918 OF 2010 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 31102 OF 2008 APPENDIX PETITIONER(S) EXHIBITS EXHIBIT P1 : TRUE COPY OF THE CERTIFICATE OF INCORPORATION BEARING NO. 09-13879 OF 2000. EXHIBIT P2 : TRUE COPY OF THE CONSENT AFFIDAVIT DATED 25.04.2000. EXHIBIT P3 : TRUE COPY OF THE CONSENT AFFIDAVIT OF THE THIRD RESPONDENT. EXHIBIT P4 : TRUE COPY OF THE LETTER SANTIONING THE LOAN AMOUNT DATED 18.08.2000 NUMBERED AS PTABR/CC/35/3207/2000-01. EXHIBIT P5 : TRUE COPY OF THE NOTICE DATED 12.04.2004 NUMBERED AS TRO/409/S.A./PTA.BR/19/2008-05. EXHIBIT P6 : TRUE COPY OF THE REPLY DATED 05.06.2004. EXHIBIT P7 : TRUE COPY OF THE REPLY NOTICE DATED 26.10.2004 NUMBERED AS TRO/409/SA/PTABR./342/2008-05. EXHIBIT P8 : TRUE COPY OF THE JUDGMENT IN W.A. 328/2005 DATED 03.02.2006. EXHIBIT P9 : TRUE COPY OF THE LETTER DATED 01.03.2006 ISSUED BY PETITIONER TO THE FIRST RESPONDENT. EXHIBIT P10 : TRUE COPY OF THE NOTICE DATED 26.09.2008 NO. TRO/SA/PTABR/864/2008-09 ISSUED BY THE FIRST RESPONDANT. EXHIBIT P11 : TRUE COPY OF THE PAPER PUBLICATION AS PUBLISHED IN DESHABHIMANI DAILY DATED 30.09.2008. RESPONDANT(S) EXHIBITS : NIL /True copy/ P.A. to judge. dnc S.SIRI JAGAN, J. ----------------------------------- W.P(c)Nos. 31102/2008, 37099/2010 & 36918/2010 ------------------------------------------------ Dated this the 28th day of September, 2011 JUDGMENT In these three Writ Petitions, the petitioners are borrower of money from the Kerala State Co-operative Bank Limited, a guarantor for the loan and a subsequent purchaser of the property, against which, the bank has initiated proceedings under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002. The petitioners are challenging the same. On 15.07.2011, I passed the following interim order: “These three writ petitions are filed by a borrower of money from the Kerala State Co-operative Bank Limited, a guarantor for the loan and a subsequent purchaser of the property, against which, the bank has initiated proceedings under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002. There are serious disputes regarding the amounts due. According to the principal debtor, the amount now demanded is exorbitant. He also points out that he is entitled to the benefit of one time settlement. But he does not dispute the fact that he borrowed Rs.19 lakhs at the rate of 18% interest with a condition that if he defaults W.P(c)Nos. 31102/2008, 37099/2010 & 36918 of 2011 2 payment, 2% defaulted interest also will have to be paid. The loan was taken in 2000. 11 years have gone by. Therefore, 220% interest also had accrued. Therefore, on a very rough estimate minimum Rs.60 lakhs must have become due under the loan account. Of course payments are to be adjusted. This Court has granted an interim stay of further proceedings under the Act. I am inclined to continue the stay only on condition that the principal debtor pays at least the admitted amount. in the above circumstances, the stay is extended for a period of three months on the following conditions: The principal debtor[petitioner in W.P.(c) No.37099/2010] shall pay an amount of Rs.15 lakhs within one month, Rs.17.5 lakhs in another month and another Rs.17.5 lakhs within a further period of one month. Post after a month.” Admittedly, the condition in the interim order has not been complied with. I am of the opinion that the petitioners should more appropriately challenge the proceedings under the Act in an application under Section 17 of the Act before the Debts Recovery Tribunal in so far as disputed questions of fact W.P(c)Nos. 31102/2008, 37099/2010 & 36918 of 2011 3 are involved and moreover the Supreme Court has time and again considered High Courts against entertaining Writ Petitions challenging proceedings under the SARFAESI Act. Therefore, these Writ Petitions are dismissed. S.SIRI JAGAN, JUDGE. ln