IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM MONDAY, THE 20TH SEPTEMBER 2010 / 29TH BHADRA 1932 WP(C).No. 24351 of 2010(T) -------------------------------------- PETITIONER(S): ----------------------- M/S.BAYWATCH PROPERTIES, SARAVANA, 1ST FLOOR, MANIKATH CROSS RAOD, RAVIPURAM, COCHIN, REP.BY ITS MANAGING PARTNER, VASUDEVAN NAMBOOTHIRI, AGED 59, S/O.K.N.RAMAN NAMBOOTHIRI, FLAT NO.35, AMBADI CHAMBERS, CHITTOOR ROAD, COCHIN-11. BY ADV. SRI.G.SREEKUMAR (CHELUR), SRI.K.RAVI (PARIYARATH). RESPONDENT(S): -------------------------- 1. THE DHANALAXMI BANK LTD, THRIPUNITHURA BRANCH, LAKSHMI PALACE NO.46, FOR TEMPLE ROAD, REP.BY ITS BRANCH MANAGER, THRIPUNITHURA, ERNAKULAM, PIN-682 301. 2. THE AUTHORIZED OFFICER, THE DHANALAXMI BANK LTD, KERALA ZONE, DHANALAXMI BUILDINGS, 1ST FLOOR, NEAR A.R.CAMP OFFICE, MARINE DRIVE, ERNAKULAM – 692 031. BY ADV. SRI.C.K. KARUNAKARAN, SC. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 20/09/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs. C.K.ABDUL REHIM, J. ------------------------------------------- W.P.(C).No.24351 of 2010 ------------------------------------------- Dated this the 20th day of September, 2010 J U D G M E N T ---------------------- Petitioner is a builder who had availed credit facility from the 1st respondent Bank to the tune of Rs.2,75,00,000/- for the purpose of constructing a multi- storied residential apartment complex. Consequent to default in regular repayment of the loan, proceedings under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI Act) was initiated by the respondents. A notice under Section 13 (2) was issued, to which the petitioner submitted reply proposing some feasible methods to liquidate the liability. 2. Grievance of the petitioner is that the bank is proceeding with further coercive steps without considering such proposal. Hence the petitioner has approached this court seeking direction for settlement of the loan without resorting to further distress action. 3. In a statement filed on behalf of the respondents, it is pointed out that in reply to the notice under Section 13 (2), Exts.P1 & P2 communications were received from the W.P.(C).24351/10-T -2- petitioner, stating that they are trying to settle the matter before 5.8.2010. Further, the petitioner had given a cheque dt.31.7.2010 for an amount of Rs.1 crore, drawn on account of a sister concern of the petitioner. It is stated that the cheque was dishonoured on presentation due to insufficiency of funds on two occasions. 4. Having considered the facts and circumstances and also considering the effective alternate statutory remedy available to the petitioner, I am not at all inclined to interfere with the merits of the issue. 5. However, learned counsel appearing for the petitioner submitted that the petitioner is ready and willing to pay off the entire liability within a period of 45 days, and that they are relinquishing all challenges against the proceedings initiated. Hence indulgence was sought for in permitting payment of the amount within 45 days and till then to restrain coercive steps. The petitioner has filed I.A.No:12804/2010 seeking for an order providing 45 days time to the petitioner for liquidating the entire liability on the basis of an undertaking that the petitioner is giving up all contentions, rights and further proceedings against the actions initiated by the Bank. In an affidavit filed in support of the above application, it is stated as follows: “The petitioner is giving up all his contentions including rights to prosecute any proceedings W.P.(C).24351/10-T -3- either before this Hon'ble Court or before any other forum challenging any of the recovery proceedings subject to the fact that 45 days from today may be provided to liquidate the liability in full, as demanded by the Bank either now or in future.” 6. In view of the above undertaking made before this court through an affidavit, I am of the view that indulgence can be shown in permitting the petitioner to pay off the liability, eventhough the proceedings could not be interfered by this court on merits of the contentions. 7. In the result, the writ petition is disposed of directing the respondents to keep all further coercive steps of recovery in abeyance which is initiated under the SARFAESI Act for a period of 45 days from today, provided the petitioner pays off the entire liability within the said time. 8. Needless to say that the respondents will be free to proceed with further steps pursuant to the notices already issued, in case of any default. It is made clear that the petitioner is prevented from raising any subsequent challenge against such proceedings either before this court or before any other forum. C.K.ABDUL REHIM, JUDGE. okb