IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM THURSDAY, THE 2ND DECEMBER 2010 / 11TH AGRAHAYANA 1932 WP(C).No. 33713 of 2010(L) -------------------------- PETITIONER(S): --------------- 1. JOSE C.A., AGED 45 YEARS, S/O.ANTHONY, M/S.IMMANUVEL TIME HOUSE, 1280/4, PAZHAYA NADAKAVU, THRISSUR, 680001. 2. MAGGI OUSEPH, AGED 47 YEARS, W/O.OUSEPH, CHITTILAPPILLY, AVANOOR, THRISSUR-680547. BY ADV. SRI.SHAJI P.CHALY SMT.K.S.SUMITHA SRI.R.SANJITH RESPONDENT(S): --------------- 1. BANK OF MAHARASHTRA, THRISSUR-20, REP. BY ITS MANAGER & AUTHORISED OFFICER. 2. THE CHIEF MANAGER & AUTHORISED OFFICER, BANK OF MAHARASHTRA, REGIONAL OFFICE, NO.4, SIVAGNANAM ROAD, T.NAGAR, CHENNAI-600017. ADV. SRI.BIJU BALAKRISHNAN FOR R1,2 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 02/12/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: C.K.ABDUL REHIM, J --------------------------------------- W.P(C) No.33713 of 2010-L ---------------------------------------- Dated this the 2nd day of December, 2010. J U D G M E N T The 2nd petitioner is the sister of the 1st petitioner, who availed a business term loan from the respondent Bank to the tune of Rs.9.5 lakhs by mortgaging properties belonging to the 2nd petitioner and also by creating hypothication of the stock in trade of the business. Consequent to default committed in effecting regular repayments, proceedings under the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI Act) was initiated and the property in question was proceeded against. Ext.P2 is the notice issued by the 2nd respondent under Rule 8 of the Security Interest (Enforcement) Rules intimating steps initiated as contemplated under Section 13(4). It is stated that, subsequent to the steps taken under Section 13(4), Ext.P4 notice was issued intimating the petitioners that the property in question will be sold in public auction, if the W.P(C) No.33713 of 2010-L 2 amount is not remitted within 30 days. 2. According to the petitioners Ext.P3 representation submitted by them seeking time for payment of the amounts was not considered and the coercive steps are now being threatened. Hence the petitioners are approaching this Court seeking directions to restrain such steps. Further contention of the petitioners is that the loan in question was availed during March 2009 with repayment period of seven years, and the petitioners are ready and willing to clear payment of the outstanding arrears (overdue amounts) in order to regularise the account. 3. According to learned counsel for the respondent Bank, inspite of the fact that the amount of equated monthly instalments is a sum of Rs.17,200/-, the petitioners have not cared to make payment of the instalments on a regular basis and consecutive defaults where there. It is stated that the petitioners have effected payment of only a sum of Rs.1,40,000/- till date. Under such circumstances, apprehension raised is that even if the petitioners are W.P(C) No.33713 of 2010-L 3 permitted to make payment of the arrears in default, they will not continue regular payments of the future, without defaults. 4. Since the petitioners have not chosen to avail statutory remedies provided under the SARFAESI Act, it is not proper for this Court to interfere with the matter on merits. However, learned counsel for the petitioners submitted that the petitioners are not intending to pursue any such remedies and that they are relinquishing all challenges against the SARFAESI proceedings. On the other hand, the limited prayer is to permit regularisation of the account. Considering the fact that the respondent Bank is bound to re-classify the loan as a performing asset, once the petitioners remit the defaulted arrears, I am inclined to grant such a relief. 5. In the result, the writ petition is disposed of directing the respondents to keep in abeyance all further proceedings pursuant to the notices already issued, provided the petitioners remit the entire overdue amount W.P(C) No.33713 of 2010-L 4 (defaulted instalments along with interest and expenses if any due) in 2(two) equal monthly instalments falling due on or before 31.12.2010 and on or before 31.1.2011. The petitioners shall also make payment of the regular instalments due for the respective months. If payment of the defaulted amounts is regularised as directed above, the respondents shall permit the petitioners to continue payment of future monthly instalments in accordance with the original schedule. 6. 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 made clear that the above relief is granted subject to the condition that the petitioners are precluded from raising any subsequent challenge against such proceedings. Sd/- C.K.ABDUL REHIM JUDGE //True Copy// ab P.A to Judge