IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM THURSDAY, THE 17TH MARCH 2011 / 26TH PHALGUNA 1932 WP(C).No. 8141 of 2011(P) ------------------------------------- PETITIONER(S): ------------------------ MOHANAN PILLA. N.R., AYODHYA, KEERIKKADU, PATHIYOORKALA, KAYAMKULAM, ALAPPUZHA. BY ADV. SRI.G.PRIYADARSAN THAMPI, SRI.SYAM J SAM. RESPONDENT(S): -------------------------- 1. ICICI BANK LTD., GACHIBOWLI, HYDERABAD-500032, REPRESENTED BY AUTHORISED OFFICER. 2. MANAGER, ICICI BANK, ABAN ARCADE, T.K. ROAD, PATHANAMTHITTA, PIN-691 514. BY ADV. MR.K.K.M. SHERIFF, SC. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 17/03/2011,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs C.K.ABDUL REHIM, J. ------------------------------------------- W.P.(C).No.8141 of 2011 ------------------------------------------- Dated this the 17th day of March, 2011 J U D G M E N T ---------------------- Consequent to default committed in repayment of a housing loan availed by the petitioner from the respondent Bank, proceedings under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI Act) was initiated. The petitioner had filed this writ petition at a stage when there was a threat of dispossession on the basis of proceedings initiated under Section 14(1) of the Act before the Chief Judicial Magistrate Court, Alapuzha, in C.M.P.No.929/2011. The writ petition was moved on a 'today's motion', on 15.3.2011. But on that day, before the matter was being considered by this court, it is reported that, the Advocate Commissioner appointed by the Chief Judicial Magistrate Court had taken over possession of the property in question, which contains the residential house of the petitioner. According to the petitioner, the family members including aged mother of the petitioner were dispossessed from the house and they have no other place of residence. Contention of the petitioner is that the loan in question was availed in the year 2004 and the repayment period will expire only in the year 2020. It is further alleged W.P.(C).8141/11 -2- that the coercive steps were pursued without acceding to request made by the petitioner to permit regularisation of the account on offering payment of the amounts in default. 2. Heard, standing counsel appearing for respondents 1 and 2. It is stated that the loan account is in chronic default and inspite of repeated demands and notices, issued under the SARFAESI Act, the petitioner has not taken any earnest efforts to wipe off the liability. It is mentioned that an amount of more than Rs.8.90 lakhs is outstanding payment. Even the amounts overdue for payment (defaulted amounts) itself will come to more than Rs.4.61 lakhs, is the contention. Since the loan account was in chronic default and since the secured asset has already been taken over possession, the Bank could not permit regularisation of payment, is the contention. The Bank is also not favouring in permitting repossession of the property, unless the arrears is cleared. 3. Confronted with the above situation, learned counsel for petitioner undertook that the petitioner is relinquishing all challenges and rights if any, to invoke statutory remedy. On the other hand, limited request is made is to permit reoccupation of the residential building on the basis of an offer that the amount in default, which is overdue for payment, will be paid within a short period. It is the further offer of the petitioner that the W.P.(C).8141/11 -3- balance amount due will be paid thereafter within a reasonable time, in a phased manner. 4. Considering the alternative remedy provided under Section 17(1) this court is not justified in interfering with the proceedings, especially in view of the fact that the matter is now at the fag end of taking over possession of the secured asset. However, while considering the prejudices and predicaments pleaded by the petitioner and also considering the relinquishment of challenges, I am of the view that some indulgence can be shown in permitting the petitioner to have reoccupation of the residential house, subject to conditions. 5. Therefore the writ petition is disposed of directing the respondents to permit reoccupation of the petitioner in the residential house, for the sole purpose of residence of his family, subject to condition of the petitioner remitting the amounts overdue for payment (defaulted instalments along with interest and expenses if any due), on or before 31.3.2011. Such reoccupation if permitted will be without prejudice to rights of the respondent Bank to have legal occupation retained in view of the take over effected under Section 14(1). If such reoccupation is permitted, then the petitioner shall make payment of the balance amount in 4 (four) equal monthly instalments falling due on or before 30.4.2011 and on or before the last day of the W.P.(C).8141/11 -4- succeeding months. 6. It is made clear that if the petitioner is not remitting the amounts insisted for permitting reoccupation on or before 31.3.2011, the respondents will be free to proceed with further steps of sale of the property. It is also made clear that even if reoccupation is permitted, the respondents will be at liberty to evict the petitioner from such occupancy, in case default is committed in payment of any one of the future instalments as stipulated above. If any obstruction is there with respect to the recovery of possession, then the petitioner can resort to seek assistance either from the Chief Judicial Magistrate Court or from the police authorities having jurisdiction over the local area. 7. It is also made clear that with respect to payment of the balance amount the petitioner will be at liberty to approach the respondents seeking 'One Time Settlement' and the respondents will be free to consider such request and to take appropriate decision. C.K.ABDUL REHIM, JUDGE. okb