IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM WEDNESDAY, THE 8TH JUNE 2011 / 18TH JYAISHTA 1933 WP(C).No. 11787 of 2011(W) --------------------------------------- PETITIONERS: --------------------- 1. V.I.USMAN, AGED 62, S/O.LATE HYDROSE, VALLEPPILLY HOUSE, EDAPALLY TOLL, COCHIN-24. 2. AFASAL.V.U., AGED 30, S/O.USMAN, RESIDING AT VALLEPPILLY HOUSE, EDAPALLY TOLL, COCHIN-24. BY ADVS. SRI.SUNIL NAIR PALAKKAT, SRI. ABHILASH .K, SMT.LEELA.R. SMT. SHEEBA.N.K. RESPONDENT: ---------------------- THE FEDERAL BANK LTD., REP.BY ITS CHIEF MANAGER AND AUTHORIZED OFFICER UNDER SARFAESI ACT KALAMASSERY BRANCH, PREMIER JUNCTION, KALAMASSERY, PIN-683 104. BY ADV. SRI.A.ANTONY.S.C. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 08/06/2011,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: prv. C.K.ABDUL REHIM, J. ------------------------------------------- W.P.(C).No.11787 of 2011 ------------------------------------------- Dated this the 8th day of June, 2011 J U D G M E N T ---------------------- Challenge in this writ petition is against the proceedings initiated under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI Act). Consequent to default committed in repaying a cash credit facility availed by the petitioners from the respondent Bank, proceedings under Section 14(1) was initiated and the Chief Judicial Magistrate Court was approached for taking over possession of the immovable property, which is the secured asset. 2. According to the petitioner, the default occurred due to unforeseen failure in the business activities, and the coercive steps were now being pursued without considering request made by the petitioners for permitting regularisation of the loan account. Hence the petitioners are seeking interference of this court in restraining the coercive steps. 3. When the writ petition came up for consideration, it was noticed that the petitioners had approached this court on an W.P.(C).11787/11 -2- earlier occasion in WP(C).7588/2011 and indulgence was shown by this court in staying the dispossession subject to condition of the petitioners depositing a sum of Rs.1 lakh in 2 equal instalments. But on failure of the petitioners to fully comply with the condition, that writ petition was dismissed. Under such circumstances this court was not inclined to entertain this writ petition. However, on the basis of persuasive submissions made by the learned counsel for petitioners, indulgence was shown in staying dispossession of the property which is stated to be the residential house of the petitioners, subject to condition of the petitioners remitting a sum of Rs.10 lakhs in 2 equal instalments, falling due on or before 30.4.2011 and on or before 25.5.2011. But the petitioners had failed to make payment of any amounts as stipulated. 4. Learned counsel for the petitioners made persuasive submissions to direct the respondent Bank to refrain from evicting the petitioners from the residential house on the basis of a contention that another valuable property belonging to the petitioners had already been mortgaged for securing yet another loan availed from the Poonithura branch of the respondent Bank. According to the petitioner, if the said property is sold, the W.P.(C).11787/11 -3- arrears due under both loan accounts can be settled. On the other hand, learned counsel appearing for the respondent Bank submitted that the said property is mortgaged for an entirely different loan availed from a different branch and the contention regarding sale of such property could not be put forth in order to restrain the steps now initiated. 5. Learned counsel for the respondent made available for my perusal a copy of WP(C).7588/11. It is noticed that the request made by the petitioners for permitting substitution of the security furnished by way of mortgage with a proposal to settle the arrears by sale of the said properties had already been declined by this court. It was specifically observed that the representation submitted by the petitioners seeking such relief, is one coming within the realm of contractual obligations and it is for the respondent Bank to decide whether such request can be permitted or not. Since the petitioners were not seeking any enforceable rights, this court declined even to issue any directions to the respondents for consideration and disposal of such a request. 6. Under the above mentioned circumstances it is evident that the petitioners could not be permitted to seek the W.P.(C).11787/11 -4- very same relief by way of filing a subsequent writ petition. It is noticed that huge amounts are pending in arrears in the loan account in question and the proceedings under the SARFAESI Act was initiated much earlier. Considering dismissal of the earlier writ petition and also considering failure of the petitioners in complying with the condition stipulated by virtue of the interim order, I am not at all inclined to grant any of the reliefs sought for. Hence the writ petition fails and the same is accordingly dismissed. C.K.ABDUL REHIM, JUDGE. okb