IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM TUESDAY, THE 8TH MARCH 2011 / 17TH PHALGUNA 1932 WP(C).No. 5328 of 2011(M) --------------------------------------- PETITIONER(S): -------------------- H. MOHAMMED SHAFI, AGED 48 YEARS, S/O. HANEEFA KUNJU, THEKKE VEEDU, KOTTIYAM P.O., KOLLAM. BY ADV. SRI.S.SHANAVAS KHAN RESPONDENT(S): -------------------------- 1. THE AUTHORISED OFFICER (CHIEF MANAGER), UNION BANK OF INDIA, M.G.ROAD, THIRUVANANTHAPURAM-695 001. 2. THE UNION BANK OF INDIA, KOTTIYAM BRANCH, KOLLAM DISTRICT, REPRESENTED BY ITS MANAGER, PIN-691 001. R1 & R2 BY ADV. MR.A.S.P. KURUP, SC. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 08/03/2011,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs C.K.ABDUL REHIM, J. ------------------------------------------- W.P.(C).No.5328 of 2011 ------------------------------------------- Dated this the 8th day of March, 2011 J U D G M E N T ---------------------- Coercive steps initiated under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI Act), consequent to default committed by the petitioner in repaying a cash credit facility availed from the respondent Bank, is the subject matter of challenge in this writ petition. The immovable property, which is the secured asset, has been proceeded against. The respondents had approached the Chief Judicial Magistrate Court invoking Section 14(1) and an Advocate Commissioner was appointed to take over possession of the property. Ext.P2 is the notice issued by the Advocate Commissioner requiring to hand over possession of the property. 2. Contention of the petitioner is that the coercive steps of recovery has now been initiated without considering request made by the petitioner to permit payment of the amounts due in a phased manner, within a reasonable time. 3. In view of the remedy available under Section 17(1) of the SARFAESI Act this court may not be justified in entertaining the writ petition. However, imminent steps for dispossession W.P.(C).5328/11 -2- was stayed through an interim order, subject to condition of the petitioner remitting a sum of Rs.1,50,000/-. It is reported that the amount has already been paid. 4. Standing counsel appearing for the respondent Bank submitted that the facility in question was availed as early as in the year 2000, which was periodically renewed till the year 2008. The term of the facility now stands expired and there is an outstanding balance of Rs.6,06,532/- as on 31.5.2010. It is further stated that the Employees State Insurance Corporation had issued a Garnishee Order to the respondent Bank to realise certain amounts due from the petitioner towards contributions payable under the ESI Act. The Bank is at an obligation to make payment of the said amount and it is pointed out that if the amount is not paid, huge liability of interest will be accrued and ultimately the same will create a first charge on the immovable property which is mortgaged. 5. Eventhough this court was not inclined to interfere on merits, learned counsel for petitioner made an appeal to the extent of seeking permission for payment of the entire balance in a phased manner within a reasonable time, on the basis of an undertaking that the petitioner is relinquishing all challenges against the proceedings and that he is not intending to pursue any statutory remedy. W.P.(C).5328/11 -3- 6. Considering the limited request, I am of the view that, indulgence can be shown in permitting the petitioner to pay off the entire liability. Therefore the writ petition is disposed of directing the respondents to keep in abeyance all further coercive steps for dispossession and sale of the property, subject to condition of the petitioner remitting the entire balance outstanding along with future interest and expenses if any due, in 5 (five) equal monthly instalments falling due on or before 31.3.2011 and on or before the last day of the succeeding months. 7. It is made clear that the petitioner will make payment of the amounts due to the ESI Corporation in a lump sum, on or before 31.3.2011, subject to challenge if any raised against the liability. 8. It is made clear that on the event of default in payment of any one of the instalments the respondents will be at liberty to proceed with further steps and on such event the petitioner will be precluded from raising any subsequent challenge against such proceedings. C.K.ABDUL REHIM, JUDGE. okb