IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON WEDNESDAY, THE 23RD JUNE 2010 / 2ND ASHADHA 1932 WP(C).No. 19440 of 2010(D) --------------------------------------- PETITIONER: ------------------- MARTIN JOHN, S/O.LONAN, NJANAKKAL VEEDU,CHUTUPADUKARA, EDAPPALLY NORTH VILLAGE, KANAYANNOOR TALUK. BY ADV. SRI.G.BHAGAVAT SINGH. RESPONDENT: ---------------------- THRIPUNITHURA PEOPLE'S URBAN CO-OPERATIVE BANK LTD, NO.51 ERNAKULAM BRANCH, ERNAKULAM SOUTH, REPRESENTED BY THE BRANCH MANAGER. BY ADVS. SRI.T.A.RAJAN, SMT.T.DHANYA. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 23/06/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: prv. P.R.RAMACHANDRA MENON, J. ---------------------- W.P.(C) No. 19440 OF 2010 --------------------------- Dated this the 23rd day of June, 2010 J U D G M E N T ~~~~~~~~~~~ The petitioner has approached this Court challenging the steps taken by the respondent Bank invoking the provisions under the SARFAESI Act, in the course of the realisation of the amount stated as due under a 'housing loan'. 2. The learned counsel appearing for the petitioner submits that the petitioner became a defaulter only because of some unforeseen circumstances and that the default was never wilful. It was also stated that the petitioner approached the Bank to have the loan account regularised enabling the petitioner to clear the 'overdue' amount and to continue the benefit of the loan effecting the payments as originally issued, which however was not positively acted upon by the Bank. It is also stated that the petitioner has approached the Kerala Co- operative Tribunal, Erankulam, by filing Appeal No.31/2009 seeking for some reliefs and that some interim order was W.P.(C) No.19440/2010 2 obtained as borne by Ext.P2 finally leading to Ext.P3. It is without any regard to the above proceedings, that the Bank has resorted to the steps under the SARFAESI Act, which according to the petitioner is not correct or proper. 3. The rights and liberties of the secured creditor under the SARFAESI Act without any regard to the pendency of the proceedings before any other forum stands declared in view of the law declared by the Apex Court in Transcore v. Union of India [AIR 2007 SC 712] holding that secured creditor is very much liberty to proceed with any such steps by virtue of the non- obstante clause contained in the Statute. This being the position, the challenge raised in the Writ Petition in this regard does not hold any water at all. 4. With regard to the prayer to have the loan account regularised, the learned counsel appearing for the Bank submits, on instructions, that the outstanding amount is nearly 19,26,192/- and that the 'overdue' amount in respect of the defaulted instalments itself will come nearly 5,28,482/-. Unless W.P.(C) No.19440/2010 3 and until the petitioner clears the entire overdue amount, the question of regularisation of loan account is not liable to be entertained, submits the learned counsel. 5. Considering the facts and circumstances and also the plight of the petitioner as described in the Writ Petition and after hearing the persuasive submissions made by the learned counsel, this Court finds it fit and proper to give one more opportunity to the petitioner to have the loan account regularised, especially, the loan facility extended by the Bank being in the 'housing sector'. Accordingly, the petitioner is directed to satisfy the entire 'overdue' amount by way of '5' equal monthly instalments; the first of it shall be effected on or before 15th of July 2010, to be followed by similar instalments to be effected on or before the 15th of the succeeding months. Subject to this, the loan account shall stand regularised and the petitioner shall continue to effect the regular EMIs without fail. It is made clear that, if the petitioner commits any default in clearing the 'overdue' amount as above, or if any two consecutive defaults are made with regard to the regular EMIs, the W.P.(C) No.19440/2010 4 respondents will be at liberty to proceed with further steps for realisation of the entire amount in lump sum. (P.R.RAMACHANDRA MENON, JUDGE) ps