IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON FRIDAY, THE 21ST AUGUST 2009 / 30TH SRAVANA 1931 WP(C).No. 23241 of 2009(A) -------------------------- PETITIONER: --------------- RAJEEV KUMAR, S/O. VISHWANATHAN, RESIDING AT AJITHALAYAM, MANNAM POST, NORTH PARAVUR. BY ADV. MR. K.JAYAKUMAR MR. P.B.KRISHNAN MR. R.SURAJ KUMAR MS. GEETHA P.MENON MR. N.AJITH MR. P.M.NEELAKANDAN RESPONDENTS: --------------- 1. THE AUTHORIZED OFFICER & CHIEF MANAGER, UNION BANK OF INDIA, NODAL REGIONAL OFFICE, UNION BANK BHAVAN, M.G. ROAD, KOCHI-35. 2. UNION BANK OF INDIA, REP. BY ITS BRANCH MANAGER, NEAR K.S.R.T.C BUS STAND, ALUVA. 3. M/S PRESTIGE PLASTICS, INDUSTRIAL DEVELOPMENT AREA, ERUMATHALA POST, ERNAKULAM DIST, PIN -17, REPRESENTED BY ITS PARTNER SHRI SREEKUMAR. R1 AND R2 BY ADV. MR. A.S.P.KURUP, STANDING COUNSEL THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 21/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.R. RAMACHANDRA MENON J. ~~~~~~~~~~~~~~~~~~~~~~~ W.P. (C) No. 23241 of 2009 ~~~~~~~~~~~~~~~~~~~~~~~ Dated, this the 21st day of August, 2009 JUDGMENT The case of the petitioner is that, he is a guarantor to the loan availed by the 3rd respondent, creating security interest over the property in question. It is an admitted fact that, the loan availed from the Bank could not be repaid on time, under which circumstances, the Bank has resorted to steps under the SARFAESI Act, which hence is sought to be intercepted in the present Writ Petition. 2. The learned counsel for the petitioner submits, with reference to the specific prayers raised in the Writ Petition that, the properties of the petitioner might be spared till appropriate proceedings are taken and finalized against the properties offered as security by the 3rd respondent, and if the amount procured by virtue of the sale of the said items is not sufficient, the respondent Bank could very well proceed against the properties offered by the petitioner, as well. 3. Heard the learned counsel for the respondent Bank as well. 4. Coming to the sustainability of the prayers raised by the petitioner, it is very much obvious that, the relief sought for is quite contrary to the provisions contained in the Act, particularly under Sub section 11 of Section 13, which clearly enables the secured creditor to WP (C) No. 23241 of 2009 : 2 : proceed against the Guarantors, even before proceeding against the property of the principal debtor/borrower. 5. However, considering the particular facts and circumstances and the submissions made by learned counsel that the properties offered by the respondent firm will generate sufficient funds and also the submission made by the learned counsel for the Bank that the Bank does not have any objection to make an attempt in this regard by proceeding against the properties, both movables and immovables, offered as security by the 3rd respondent and if there occurs any obstruction in liquidating the liability, the Bank will inform the position to the petitioner, on which event, the petitioner shall surrender the property in question. 6. In the said circumstances, the submissions made from both the sides are recorded and it is declared that the Bank will be entitled to proceed against the properties of the petitioner, if the steps taken by the Bank to realize due amount by proceeding against the properties of the 3rd respondent do not become fruitful or get unduly delayed in any manner. The Writ Petition is disposed of accordingly. P. R. RAMACHANDRA MENON, JUDGE kmd