IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM THURSDAY, THE 23RD SEPTEMBER 2010 / 1ST ASWINA 1932 WP(C).No. 10319 of 2010(L) --------------------------------- PETITIONER(S): ------------------- M.J.MOHAMMED, S/O.JAINU, AGED 51 YEARS, MADATHATTU HOUSE, CHOWARA P.O., NEDUMBASSERY. BY ADVS. SRI.BIJU .C. ABRAHAM SRI.V.M.ALI RESPONDENT(S): -------------------- 1. THE ALWAYE URBAN CO-OP. BANK LTD., CHENGAMANAD BRANCH, REP. BY ITS BRANCH MANAGER. 2. E.M.ABU, S/O.MUSTHAFA, AGED 58 YEARS, EDACHAMPURATH HOUSE, CHOWARA P.O. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 23/09/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: svs/ C.K.ABDUL REHIM, J --------------------------- W.P(C) No.10319 of 2010-L ---------------------------- Dated this the 23rd day of September, 2010. J U D G M E N T Apprehension of the petitioner is that coercive steps under the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI Act) will be initiated against the property owned by him having an extent of 14.71 ares comprised in re-survey No.172/13 of Chengamanad Village. It is the case of the petitioner that, the second respondent, who had availed a loan from the first respondent Bank had committed fraud on the petitioner for obtaining title deed of the above said property and mortgaged the same for the purpose of securing loan availed by him. It is stated that, on getting the loan amount, the second respondent had absconded and the petitioner had already moved a private complaint before the Judicial First Class Magistrate Court II, Aluva against the second respondent alleging the offences of fraud and cheating. It is stated that the said complaint has been referred by the Magistrate Court for investigation by the Police, under Section 156(3) of the Code of W.P(C) No.10319 of 2010-L 2 Criminal Procedure. Conceding the fact that mortgage was created with respect to the property, the limited prayer of the petitioner is to permit payment of the entire liability due to the first respondent Bank, in instalments within a reasonable period. 2. Inspite of notice served from this Court on the first respondent, nobody entered appearance. Through an interim order dated 15.5.2010, this Court directed payment of a sum of Rs.1,00,000/-. It is submitted that the petitioner had complied with the condition and also remitted a further sum of Rs.50,000/-. According to the petitioner the balance outstanding in the loan account is about Rs.4.50 lakhs, less the amount now paid. 3. The petitioner has not produced any notice which was issued by the first respondent Bank indicating that specific steps was initiated under the SARFAESI Act. As such I am of the opinion that this writ petition need not be entertained with respect to the challenge raised against the steps initiated by the first respondent Bank. 4. However, having considered specific request of the petitioner to permit payment of the entire balance amount within a W.P(C) No.10319 of 2010-L 3 reasonable time, I am of the opinion that some indulgence can be shown. 5. In the result, the writ petition is disposed of directing the first respondent to keep in abeyance all further steps of recovery, provided the petitioner remits the entire balance outstanding in 8 (eight) equal monthly instalments, falling due on or before 15.11.2010 and on or before the 15th day of succeeding months. 6. It is made clear that on the event of default in payment of any of the instalments, the first respondent will be free to proceed with further steps. It is further made clear that the above relief is granted subject to the condition that the petitioner is precluded from raising any subsequent challenge against such proceedings, either before this Court or before any other forum. C.K.ABDUL REHIM JUDGE ab