IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM THURSDAY, THE 9TH DECEMBER 2010 / 18TH AGRAHAYANA 1932 WP(C).No. 34555 of 2010(T) -------------------------- MC.145/2010 of C.J.M.,THODUPUZHA .................... PETITIONER(S): --------------- 1. SMT.ANITHA JIJI, W/O.JIJI ZECHARIAS, VELLOKUNNEL HOUSE, SOORYANELLI KARA, CHINNAKANAL VILLAGE, UDUMBANCHOLA TALUK, IDUKKI DISTRICT. 2. SRI.JIJI ZECHARIA, VELLOKUNNEL HOUSE, SOORYANELLI KARA, CHINNAKANAL VILLAGE, UDUMBANCHOLA TALUK, IDUKKI DISTRICT. BY ADV. SRI.GEORGE KURUVILLA(ALAPPUZHA) RESPONDENT(S): --------------- UNION BANK OF INDIA, REP. BY ITS BRANCH MANAGER, MUNNAR BRANCH, IDUKKI DISTRICT - 685 652. BY SRI.A.S.P KURUP - SC THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 09/12/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: C.K.ABDUL REHIM, J --------------------------------------- W.P(C) No.34555 of 2010-T ---------------------------------------- Dated this the 9th day of December, 2010. J U D G M E N T The petitioners have jointly availed three loans from the respondent Bank by mortgaging immovable properties belonging to them. Consequent to default committed in repayment of the loans availed, proceedings under the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI Act) was initiated, and invoking Section 14(1) the Chief Judicial Magistrate Court was approached. An Advocate Commissioner appointed by that Court had already taken over possession of the property in question. 2. The petitioners are challenging the proceedings initiated mainly on the ground that the property mortgaged is an agricultural land which is exempted from the purview of the SARFAESI Act, by virtue of Section 31(i). The further contention of the petitioners is that there was no proper notice issued prior to the proceedings initiated under Section 14(1) and that the amount demanded under the proceedings is not true and correct. 3. Considering the fact that the petitioners have not W.P(C) No.34555 of 2010-T 2 chosen to avail any of the statutory remedies provided under the SARFAESI Act at any point of time when steps were proceeded under Section 13(2) and 13(4), I am of the view that this writ petition could not be entertained on the basis of merits of the contentions raised. Further I notice that the challenge on the basis of Section 31(i) could not be resolved in this proceedings in view of the fact that the respondent Bank is stoutly refuting that the property in question is an agricultural land. 4. Confronted with the above position, learned counsel for the petitioners submitted that the petitioners are not intending to pursue any of the statutory remedies and that they are relinquishing all challenges against the proceedings. On the other hand, the limited prayer is only to permit payment of the balance amount in a phased manner within a short period. 5. The prayer is opposed by the learned counsel for the respondents on the ground that the loan account is in chronic default since the last so many years and that the petitioners were not earnest in their efforts to wipe off the liability inspite of repeated demands made. 6. As a gesture of indulgence, this Court had passed an W.P(C) No.34555 of 2010-T 3 interim order to keep in abeyance dispossession of the petitioners from the property, subject to condition of the petitioners remitting a sum of Rs.2,00,000/-. But it is brought to my notice that even before the interim order, the petitioners were dispossessed from the property by virtue of orders issued by the Chief Judicial Magistrate Court. However, it is reported that in compliance of the interim order the petitioners had remitted a sum of Rs.2,00,000/- on 30.11.2010. Considering the fact that the petitioners are relinquishing all challenges against the proceedings, I am of view that indulgence can be shown in permitting the petitioners to pay off the balance amount in instalmetns within a reasonable period. 7. Accordingly, the writ petition is disposed of directing the respondent Bank to keep in abeyance all further steps for sale of the property, subject to condition of the petitioners remitting the entire balance outstanding along with interest and expenses if any, due in 10 (ten) equal monthly instalments, falling due on or before 15.1.2011 and on or before the 15th day of succeeding months. 8. It is made clear that the petitioners are at liberty to W.P(C) No.34555 of 2010-T 4 approach the respondents pointing out discrepancy if any in the calculation of the balance amount and also seeking benefits of any scheme for waiver or any scheme for one time settlement. If any such approach is made, the respondent Bank is at liberty to consider the same and to take appropriate decision thereon. 9. It is made clear that on the event of default in payment of any one of the instalments the respondents will be free to proceed with further steps. It is further made clear that the above relief is granted subject to condition that the petitioners are precluded from raising any subsequent challenge against the proceedings. Sd/- C.K.ABDUL REHIM JUDGE //True Copy// P.A to Judge ab