IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM TUESDAY, THE 14TH JUNE 2011 / 24TH JYAISHTA 1933 WP(C).No. 14032 of 2011(D) ---------------------------------------- PETITIONER(S): ----------------------- JOSEPH J.KUTTIKKATTU, KUTTIKKATTU HOUSE, DESHABHIMANI CORNER, KALOOR, KOCHI- 682 017. BY ADV. SRI.AVM.SALAHUDIN RESPONDENT(S): -------------------------- 1. THE HOUSING DEVELOPMENT FINANCE CORPORATION LIMITED., REPRESENTED BY ITS MANAGER, HDFC HOUSE, RAVIPURAM JUNCTION, KOCHI- 682 015. 2. AUTHORISED OFFICER, HOUSING DEVELOPMENT FINANCE CORPORATION LIMITED, HDFC HOUSE, RAVIPURAM JUNCTION, KOCHI- 682 015. R1 & R2 BY SRI.K.K.CHANDRAN PILLAI, SENIOR ADVOCATE. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 14/06/2011,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs WP(C).No. 14032 of 2011(D) APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE TITLE DEED NO.5124/99, SRO ERNAKULAM DATED 10/12/1999. EXT.P1(a): COPY OF THE TAX RECEIPT DATED 13/01/2011 WITH RESPECT TO THE PROPERTY COVERED BY DOCUMENT NO.13020/06 ISSUED FROM THE VILLAGE OFFICER, KODAMTHURUTHY. EXT.P2: COPY OF THE RECEIPT ISSUED BY THE RESPONDENT BANK. EXT.P3: COPY OF THE REPRESENTATION DATED 12/01/2011. EXT.P4: COPY OF THE LETTER DATED 23/05/2011 ISSUED BY THE SECOND RESPONDENT. RESPONDENT'S EXHIBITS: NIL //TRUE COPY// P.A. TO JUDGE rs C.K.ABDUL REHIM, J. ------------------------------------------- W.P.(C).No.14032 of 2011 ------------------------------------------- Dated this the 14th day of June, 2011 J U D G M E N T ---------------------- Consequent to default committed in repayment of a housing loan availed by the petitioner from the respondent Bank, proceedings under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI Act) was initiated against the immovable property, which is the secured asset. 2. According to the petitioner, the amount demanded is not true and correct and excessive interest and other charges were credited to the account in question. Complaint of the petitioner is that, in spite of request made for permitting 'OTS' through waiver of interest/penal interest and other expenses, the respondents are not taking any positive action. Hence interference of this court to restrain the proceedings is sought for. 3. Learned standing counsel appearing for the respondents submitted that the loan in question was availed in the year 2000 with repayment period extending to 180 months. It is further submitted that the loan account is in chronic default and the petitioner had defaulted payment of instalments since the last so many months. The Bank had already recalled the loan account and declared the same as 'NPA' in the year 2005. Even thereafter W.P.(C).14032/11 -2- the petitioner had not remitted any amounts and the total balance outstanding is around Rs.7 lakhs. 4. By virtue of an interim order issued on 24.5.2011, dispossession of the petitioner from the property was directed to be kept in abeyance, subject to condition of the petitioner remitting a sum of Rs.1,25,000/-. It is reported that the amount has already been paid. Learned standing counsel submitted that, proceedings initiated under Section 14(1) before the Chief Judicial Magistrate Court are pending disposal. 5. Considering the effective alternative remedy provided under the statute it may not be justified on the part of this court to interdict with the proceedings initiated under the SARFAESI Act, and also to have any adjudication regarding correctness of the demand raised. However, learned counsel for petitioner made an appeal to this court to permit payment of the total amounts due under the loan account in a phased manner, within a reasonable time, subject to his rights to dispute correctness of the amounts under demand. The above request is made based on an undertaking that the petitioner is relinquishing all challenges against the proceedings, without prejudice to his rights to get mistake if any in the calculation of the amounts. It is also submitted on behalf of the petitioner that the petitioner is not intending to pursue any statutory remedy. Even though interference on merits is not warranted, I am of the view that W.P.(C).14032/11 -3- indulgence can be shown in permitting the petitioner to pay off the entire liability in instalments within a reasonable time. 6. Accordingly the writ petition is disposed of directing the respondents to keep in abeyance all further steps for dispossession and sale of the property, subject to condition of the petitioner remitting the entire balance along with interest and expenses if any due, in 10 (ten) equal monthly instalments, falling due on or before 30.6.2011 and on or before the last day of the succeeding months. 7. It is made clear that in order to facilitate payment of the amounts, the petitioner shall be furnished with a detailed statement of accounts. It is further made clear that the petitioner will be at liberty to point out mistake if any in the account, and if the respondents are convinced of any such mistake, the same shall be corrected. 8. It is also made clear that on the event of default in payment of any one of the instalments as stipulated, 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