IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN MONDAY, THE 10TH NOVEMBER 2008 / 19TH KARTHIKA 1930 WP(C).No. 32911 of 2008(R) -------------------------- PETITIONER(S): --------------- T.N.RAJESH, AGED 30 YEARS, S/O.NAGENDRAN, VISHALA BHAVAN, PALLURUTHY, KOCHI-6. BY ADV. SRI.N.K.MOHANLAL RESPONDENT(S): --------------- CHIEF MANAGER AND AUTHORISED OFFICER, BANK OF INDIA, ZONAL OFFICE, KALOOR TOWERS, KALOOR - KADAVANTHARA ROAD. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 10/11/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOTTATHIL B.RADHAKRISHNAN, J. ------------------------------------------- W.P(C).No.32911 OF 2008 ------------------------------------------- Dated this the 10th day of November, 2008 JUDGMENT Having heard learned counsel for the petitioner quite in extenso and having considered the merits of the matter, I do not find any ground to interfere with the impugned proceedings. The petitioner and his father jointly availed a home loan in October, 2004 for Rs.3.80 lakhs. They did not repay the instalments in terms of the agreement between the parties. This led to a notice under Section 13 (2) of the SARFAESI Act being issued on 27.7.2007, after classifying the account as an NPA as on 31.3.2007. The plea of the petitioner is only that no prior notice under Section13 (4) of the SARFAESI Act has been issued before further proceeding with dispossession and that the bank officials are at the petitioner's door steps to dispossess him. Section 13 (4) does not contemplate any prior notice. Section 13 (4) of the SARFAESI Act read with Rule 8 of the Security Interest Enforcement Rules provide the mode for enforcing a measure under section 13 (4) by dispossession of immovable properties. WPC.32911/08 Page numbers Stricto senso, if a notice in terms of Rule 8 is served as provided for therein and if it is affixed in the site, it amounts to the exercise of the measure of dispossession. It has, however, to be followed by publication. Section 13 (4) does not contemplate and Rule 8 does not provide any prior notice for such process. Therefore, the issue raised fails. 2. The transaction is not in dispute. The outstandings cannot be disputed. The accruals have led to the classification of the account as an NPA. There is, therefore, no jurisdictional error or legal infirmity in the impugned proceedings. Faced with this situation, learned counsel for the petitioner sought for a relief that the petitioner may be permitted to wipe off the outstanding in a few instalments to save the property, which is hardly 5 cents. Repelling all other contentions and also foreclosing the petitioner from moving the Debt Recovery Tribunal against the impugned proceedings, this writ petition is ordered directing that if the petitioner deposits an amount of Rs.2 lakhs within three weeks and continues to deposit amounts WPC.32911/08 Page numbers at the rate of Rs.1 lakh per month, payable on or before the last working day of every month commencing from December, 2008, the impugned distress action will be withheld to let him pay off the entire outstandings, including the accruals and save the property from further distress action. However, if there is default in remitting any of the amounts as aforesaid, the benefit of this judgment shall stand recalled automatically and the respondents will be at liberty to further proceed with the impugned proceedings without any further notice to the petitioner. Ordering this writ petition as above, it is further directed that notice to the respondent is dispensed with having regard to the directions issued above, preserving its right to move for review of this judgment, if aggrieved. Sd/- THOTTATHIL B.RADHAKRISHNAN, Judge kkb.