IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN MONDAY, THE 22ND SEPTEMBER 2008 / 31ST BHADRA 1930 WP(C).No. 25117 of 2008(M) --------------------------------------- PETITIONER: ------------------- PARAMESWARAN, AGED 57 YEARS, S/O.APPU, KAVARAPARAMBIL, CHETHIKODE HOUSE, ERUMATHALA.P.O, CHOONDY, ALUVA. BY ADV. SRI.N.K.MOHANLAL. RESPONDENTS: ----------------------- 1. AUTHORISED OFFICER, HDFC LIMITED, M.G.ROAD, RAVIPURAM, KOCHI-15. 2. DISTRICT COLLECTOR, ERNAKULAM. GOVT. PLEADER SRI. K.C. SANTHOSH KUMAR FOR R2, ADV. SRI.K.K.CHANDRAN PILLAI FOR R1. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 22/09/2008,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: prv. THOTTATHIL B. RADHAKRISHNAN, J. = = = = = = = = = = = = = = = = = = = = = = = = W.P.(C).No.25117 of 2008-M = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 22nd day of September, 2008. JUDGMENT 1.The petitioner availed a housing loan from the HDFC. The first respondent is its authorized officer acting under the provisions of the SARFAESI Act. On ground of alleged default, Ext.P1 was issued on 22-2-2007 recalling the advance in furtherance of the recall notice dated 23-1-2007. It was also categorically stated therein that there is non-payment of equated monthly instalments. This was followed by Ext.P2 dated 8-10-2007 whereby it was stated that HDFC would be happy to clarify any doubt that the petitioner may have regarding the amount stated in Ext.P2. On alleged non-payment of such amounts, the provisions of the SARFAESI Act were invoked. WP(C)25117/2008 -: 2 :- 2.In the meanwhile, the petitioner filed O.S.1220/2007 before the Munsiff's Court, Ernakulam alleging that he had not created any equitable mortgage in favour of HDFC which, in turn, filed Ext.P3 written statement. Thereafter, the plaint was returned for representation before the proper Court since the Munsiff's Court, Ernakulam was of the view that the said Court had no territorial jurisdiction. It is the admitted fact that the said complaint was not re- presented. The petitioner alleges in the writ petition that the suit has become infructuous by reason of the subsequent action taken by the HDFC. 3.After arguing the matter for quite some time, the learned counsel for the petitioner wanted me to leave open the right of the petitioner to move a suit for settlement of accounts before the civil Court. The learned counsel for the HDFC states that the petitioner's is a case where many among the post-dated cheques given in support of the WP(C)25117/2008 -: 3 :- transaction bounced on presentation and no complaints were raised regarding the quantum fixed in Exts.P1 and P2. Be that as it may, it is also rightly pointed out that in view of the provisions of the SARFAESI Act providing adequate alternate remedies before the DRT by means of a securitisation application even if the petitioner has a grievance regarding any measure taken by the HDFC, it is a matter to be agitated before that Tribunal, having regard to the disputed questions of facts relatable to the total outstandings. I may also notice that after the institution of this writ petition on 19-8-2008 with different adjournments, including at the instance of the petitioner, he could not obtain any effective relief from this Court and the disputes raised are entirely in the realm of the total quantum available for recovery. This situation is not one which would persuade this Court to interfere, particularly when the petitioner is not willing to pay off the entire outstandings, even in instalments as suggested by WP(C)25117/2008 -: 4 :- the HDFC in Court today. For the foregoing reasons, this writ petition fails. The same is accordingly dismissed without prejudice to the right of the petitioner for appropriate reliefs in accordance with law before other forum, if any. THOTTATHIL B. RADHAKRISHNAN, JUDGE. Sha/230908