IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN THURSDAY, THE 4TH DECEMBER 2008 / 13TH AGRAHAYANA 1930 WP(C).No. 35216 of 2008(P) -------------------------- PETITIONER: --------------- SHAJAHAN, S/O SAFARULLAKHAN, VADAKKENALUTHUNDATHIL HOUSE, THONALLOOR, PANDALAM, PATHANAMTHITTA. BY ADV. SRI.S.SANAL KUMAR SMT.BHAVANA VELAYUDHAN RESPONDENTS: --------------- 1. THE SOUTH INDIAN BANK REPRESENTED BY ITS REGIONAL MANAGER, REGIONAL OFFICE, KAKKANATTU APARTMENTS, ST.PETER'S JUNCTION, PATHANAMTHITTA. 2. THE BRANCH MANAGER, SOUTH INDIAN BANK LIMITED, BRANCH OFFICE, OPP.NSS COLLEGE, M.C.ROAD, PANDALAM, PATHANAMTHITTA. STANDING COUNSEL SRI.K.K.JOHN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 11/12/2008, THE COURT ON 04/12/2008 DELIVERED THE FOLLOWING: THOTTATHIL B. RADHAKRISHNAN, J. ------------------------------------------------------ W.P.(C) NO.35216 OF 2008 (P) ------------------------------------------------------ Dated this the 4th day of December, 2008 J U D G M E N T Petitioner and his wife, as co-obligants, availed a housing loan from the respondent bank. The loan document was on 2-6-2005. Apparently, loan application would have been earlier than that. It appears that after the submission of loan application, before the loan document was executed, petitioner's wife Hafisa was admitted to Christian Medical College, Velloore. She underwent an operation in the Neuro Surgery unit as evidenced by Exhibit P2 discharge summary. Petitioner very fairly states that the initial amounts in terms of the housing loan transaction happened to be expended to meet the expenditure in connection with the treatment of his wife. I have gone through Exhibit P3. Reasonable conclusions that are available to an ordinary man from Exhibit P2 that would be a fairly large amount that would have been spend in connection with the treatment of the petitioner's wife. While there cannot be any allegation that petitioner misused any portion of the loan amount for any purpose of a commercial nature. It appears that the bank has an allegation that though the loan was W.P.(C) No.35216 of 2008 - 2 - availed for a housing purpose, what has been ultimately constructed, though in part, is a commercial building, and, according to the bank, as of now, certain goods in trade are stocked there. The petitioner contends that the petitioner and his wife are residing there. Even after the issuance of the notice under Section 13(2) of the SARFAESI Act on 18-6-2007, the petitioner has made different remittances as stated in paragraph 5 of the writ petition. If that be so, it is a case whether the bank can have a sympathetic consideration of the case of the petitioner, particularly when, there is a bonafide attempt to repay the outstandings rather than slumper in the muddle of his own making. In the aforesaid circumstances, treating the case of the petitioner as an extra-ordinary one, it is directed that if the petitioner remits the entire amount due to save the transaction from NPA status after giving credit to the remittances already made, the bank will permit the transaction to be regularised. The petitioner will also pay to the bank all the expenditure incurred for the SARFAESI Act and Enforcement Rules. It is also clarified that this order does not stand in the way of the bank revising the rate of W.P.(C) No.35216 of 2008 - 3 - interest, if any, such in its view, the housing loan has been misused for constructing a commercial building since such construction cannot be had by utilizing funds obtained at rate of interest applicable for housing loans. This writ petition is ordered accordingly. THOTTATHIL B. RADHAKRISHNAN, JUDGE skr/9/12