WP(C).No. 13234 of 2009(Y) IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM WEDNESDAY, THE 30TH SEPTEMBER 2009 / 8TH ASWINA 1931 WP(C).No. 13234 of 2009(Y) -------------------------- PETITIONER: --------------- THOMAS ALEXANDER, KALLUVILA PUTHEN VEEDU, KUNDARA EAST, KOLLAM DISTRICT, KERALA. BY ADV. SRI. JOHNSON GOMEZ RESPONDENTS: --------------- 1. M/S.DEWAN HOUSING FINANCE CORPORATION LTD., WARDEN HOUSE, SECOND FLOOR, SIR P.M.ROAD, FORT, MUMBAI-400 001 REPRESENTED BY ITS SECRETARY. 2. THE AUTHORIZED OFFICER, (SARFAESI ACT) DEWAN HOUSING FINANCE CORPORATION LTD., WHITE HOUSE, SECOND FLOOR, PARTHAS POWER HOUSE ROAD, THIRUVANANTHAPURAM-695 023. 3. THE GENERAL MANAGER, THE NATIONAL HOUSING BANK, (WHOLLY OWNED BY THE RESERVE BANK OF INDIA) CORE-5A, INDIA HABITAT CENTER, LODHI ROAD, NEW DELHI-110 003. BY ADV. SRI.PAULACHAN ANTONY THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 30/09/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: SHG/ WP(C).No. 13234 of 2009(Y) APPENDIX PETITIONER'S EXHIBITS: P1. COPY OF THE LETTER OF OFFER PAGE ONE ISSUED BY THE SECOND RESPONDENT DATED 07.09.2004. P2. COPY OF THE LETTER NO.DHFL/THIR/07-08/284 DATED 22ND SEPTEMBER 2008 ISSUED BY THE 2ND RESPONDENT. P3. COPY OF THE NOTICE DATED 09.12.2008 ISSUED BY THE SECOND RESPONDENT. P4. COPY OF THE LETTER DATED 31.12.2008 ISSUED BY THE PETITIONER TO THE SECOND RESPONDENT. P5. COPY OF THE POSSESSION NOTICE NO.LC NO.1676 DATED 08.03.2009 ISSUED BY THE 2ND RESPONDENT. P6. COPY OF THE LETTER DATED 09.03.09 ISSUED BY THE PETITIONER TO THE 1ST RESPONDENT. P7. COPY OF THE LETTER NO.DHFL/LEGAL/THIR/1672 DATED 2ND APRIL 2009. P8. COPY OF THE REPRESENTATION DATED 16.03.09 SUBMITTED BY THE PETITIONER BEFORE THE BANK OMBUDSMAN, THIRUVANANTHAPURAM. P9. COPY OF THE LETTER NO.OBO(T) NO.7123/MISE.48/2008-09 DATED 13TH APRIL 2009. P10. COPY OF THE REPRESENTATION DATED 06.03.09 SUBMITTED BY THE PETITIONER BEFORE THE 3RD RESPONDENT. P11. COPY OF THE LETTER NO.NHB(ND)/COMPLAINTCELL/2216/2009 DATED 27TH MARCH 2009 ISSUED BY THE 3RD RESPONDENT. RESPONDENTS' EXHIBITS: NIL //TRUE COPY// P.A. TO JUDGE Shg/ C.K. ABDUL REHIM, J - - - - - - - - - - - - - - - - - - - - - - - W.P.(C)No. 13234 of 2009 - - - - - - - - - - - - - - - - - - - - - - - Dated this the 30th day of September, 2009 J U D G M E N T 1. Challenge in this Writ Petition is against proceedings initiated under the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI Act) by respondents 1 & 2 for realisation of amounts in arrears in a housing loan availed by the petitioner. Contention of the petitioner is that the amount demanded under the notice issued is not correct and the petitioner is not liable to pay the amount calculated with the higher rate of interest than what was agreed upon at the time of availing the loan. 2. By virtue of an interim order of this court, dated 05.05.2009, the petitioner was directed to make deposit for an amount of Rs.2,00,000/-. The learned counsel appearing for the petitioner submitted that the petitioner had already complied with the condition. Learned standing counsel for W.P.(C)No. 13234 of 2009 -2- the respondents submitted that the balance outstanding after crediting the said payments is Rs.5,22,405/- as on 26.09.2009. The petitioner expressed willingness to pay off the entire arrears due, provided the Bank consider the dispute pertaining to the rate of interest as well as reasonable time is granted to pay the amount in installments. 3. Having considered the rival contentions and facts and circumstances of the case, the writ petition is disposed of directing the petitioner to make payment of a sum of Rs.1,00,000/- (Rupees One lakh only) on or before 15.10.2009. In the meanwhile the respondent Bank will consider the dispute raised by the petitioner as evidenced by Exts.P4 & P10 representations pertaining to the rate of interest as well as for a 'compromise settlement' by waiving of interest to possible extent. On payment of Rs.1,00,000/- the respondent Bank shall furnish a balance statement to the petitioner after giving credit to such payments and after considering waiving of interest to the possible extent. The W.P.(C)No. 13234 of 2009 -3- petitioner shall continue to pay the balance outstanding as per the statement, in four (4) equal monthly installments starting from 15.11.2009 and on or before the 15th day of every succeeding month. 4. It is made clear that on the event of default in payment of any of the amounts, the Bank will be free to proceed with further steps pursuant to the notices already issued. It is made clear that the benefit granted under this judgment is subject to the condition that the petitioner is precluded from raising any further challenge against the proceeding, before this court or before any other forum. C.K. ABDUL REHIM JUDGE shg/