IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM MONDAY, THE 24TH JANUARY 2011 / 4TH MAGHA 1932 WP(C).No. 332 of 2011(N) ------------------------------------- PETITIONER(S): ------------------------ SANTHOSHKUMAR.M.S., SUMA NIVAS, NAVODAYA LANE, KOOVALASSERY.P.O., THIRUVANANTHAPURAM. BY ADV. SRI.R.GOPAN RESPONDENT(S): ---------------------------- 1. THE AUTHORIZED OFFICER/CHIEF MANAGER, STATE BANK OF TRAVANCORE, REGION-II, ZONAL OFFICE, KSHB BUILDING, SANTHI NAGAR, THIRUVANANTHAPURAM. 2. THE BRANCH MANAGER, STATE BANK OF TRAVANCORE, OORUTTAMBALAM BRANCH, OORUTTAMBALAM.P.O. R1 & R2 BY ADV. SRI. R.S. KALKURA, SC, SBT THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 24/01/2011,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss C.K.ABDUL REHIM, J. ------------------------------------------- W.P.(C).No.332 of 2011 ------------------------------------------- Dated this the 24th day of January, 2011 J U D G M E N T ---------------------- The petitioner had availed an educational loan for studying abroad, from the respondent Bank, to the tune of Rs.4,39,347/-, during the year 2003. Consequent to default committed in repayment, the respondent Bank had initiated proceedings under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI Act) and the immovable property was proceeded against invoking Section 14(1) of the Act. Ext.P6 is the order issued by the Chief Judicial Magistrate Court appointing an Advocate Commissioner to take over possession of the property. 2. Petitioner raises contentions to the effect that the amount sought to be recovered is not true and correct and the rate of interest calculated is higher than the rate prescribed through the guidelines issued by Reserve Bank of India, which is having statutory force. It is also contended that the coercive steps are now initiated without considering the request for permitting payment of the arrears in a phased manner and also the request for waiver of interest and other expenses on the basis of an offer made for 'One Time Settlement'. W.P.(C).332/11 -2- 3. Considering availability of alternative remedy which is more effective, I am not inclined to entertain this writ petition. The dispute regarding rate of interest could not be adjudicated in a proceedings under Article 226 of the Constitution of India. However, learned counsel for respondents submitted that the loan was sanctioned at the rate as prescribed under the RBI guidelines, and the higher rate demanded is only because adding the penal interest levilable due to default committed. However, it is submitted that the amount outstanding is around Rs.10 lakhs. 4. Eventhough interference on merits is not desirable, this court had granted an interim stay against dispossession of the petitioner from the property, subject to condition of the petitioner remitting Rs.2 lakhs. It is reported that the stipulation has already been complied with. 5. Learned counsel appearing for the petitioner submits that the petitioner is ready and willing to pay off the entire liability in a phased manner, subject to his rights to approach the Bank seeking waiver of interest and penal interest and expenses to the possible extent. It is undertaken on behalf of the petitioner that he is relinquishing all challenges against the proceedings and that he is not intending to pursue any statutory remedy. On the other hand limited prayer is to permit the petitioner to pay off the liability in instalments and also for a direction to consider the W.P.(C).332/11 -3- request for waiver of interest/penal interest and expenses to the possible extent. 6. Under such circumstances the writ petition is disposed of directing the respondents to keep in abeyance dispossession and sale of the property in question subject to condition of the petitioner remitting the entire balance outstanding, in 8 (eight) equal monthly instalments, falling due on or before 28.2.2011 and or or before the last day of the succeeding months. 7. It is made clear that the petitioner will be at liberty to approach the respondents seeking waiver of interest/penal interest and expenses to the possible extent and to have the ''One Time Settlement'; facility. Needless to say that if any such approach is made, the respondents will be at liberty to consider the same and to take appropriate decision. 8. It is further made clear that the respondents will be free to proceed with further steps for dispossession and sale of the property on the basis of the order already issued by the CJM Court in case the petitioner commits default in payment of any one of the instalments as stipulated above and on such event the petitioner will be precluded from raising any subsequent challenge. C.K.ABDUL REHIM, JUDGE. okb