IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : HONOURABLE MR. JUSTICE C.K.ABDUL REHIM THURSDAY, THE 30TH JUNE 2011 / 9TH ASHADHA 1933 WP(C).No. 15755 of 2011(T) --------------------------------- PETITIONER(S): ------------------- 1. NAJUMA SALI, W/O.K.M.SALI, AGED 46, 42/2252C. ST.BENEDICT ROAD, ERNAKULAM, KOCHI-18, NOW RESIDING AT HOUSE NO.2256G, PROVIDENCE ROAD, ERNAKULAM-18, ERNAKULAM VILLAGE, KANAYANNUR TALUK. 2. K.M.SALI, S/O.LATE K.A.MOHAMMED, AGED 54, 42/2252C, ST.BENEDICT ROAD, ERNAKULAM, KOCHI-18, NOW RESIDING AT HOUSE NO.2256G, PROVIDENCE ROAD, ERNAKULAM-18, ERNAKULAM VILLAGE, KANAYANNUR TALUK. BY ADVS. SRI.K.C.CHARLES SRI.M.POLY MATHAI SRI.VIMAL K.CHARLES RESPONDENT(S): -------------------- VIJAYA BANK LIMITED, REPRESENTED BY ITS BRANCH MANAGER, VYTTILA BRANCH, KOCHI-19, POONITHURA VILLAGE, KANAYANNUR TALUK. R1 BY ADVS. SMT.SALLY THOMAS CHACKO SRI.P.T.THOMAS PERAKATH THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 30/06/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: svs W.P.(C). NO. 15755/2011 APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE LOAN SANCTION LETTER DATED 15/01/2005 ISSUED BY THE RESPONDENT A NATIONALISED BANK. P2: COPY OF THE LETTER DATED 17/01/2005 EXECUTED BY THE PETITIONERS IN FAVOUR OF THE RESPONDENT IN CONNECTION WITH THE LOAN. P3: COPY OF THE LETTER OF REPAYMENT DATED 17/01/2005 EXECUTED BY THE PETITIONERS IN FAVOUR OF THE RESPONDENT. P4: COPY OF THE ARTICLES OF AGREEMENT DATED 17/01/2005 EXECUTED BY THE PETITIONERS IN FAVOUR OF THE RESPONDENT P5: COPY OF THE DEMAND PROMISSORY NOTE DATED 17/01/2005 EXECUTED BY THE PETITIONERS IN FAVOUR OF THE RESPONDENT FOR AVAILING THE LOAN OF RS.90,00,000/- P6: COPY OF THE STATEMENT OF ACCOUNTS RELATING TO THE HOUSING LOAN. P7: COPY OF THE PLAINT IN O.S.775/2008. P8: COPY OF THE JUDGMENT DATED 28/01/2011 OF THE DISTRICT COURT, ERNAKULAM IN CMA. 75/2009. P9: COPY OF THE JUDGMENT IN WPC.NO.23448/2010 DATED 12/08/2010 P10: COPY OF THE LETTER DATED 23/05/2011. RESPONDENT'S EXHIBITS: NIL /TRUE COPY/ P.A. TO JUDGE. svs C.K.ABDUL REHIM, J. ------------------------------- W.P.(C).No.15755 of 2011 ------------------------------- Dated this the 30th day of June, 2011. J U D G M E N T This writ petition is filed seeking a declaration to the effect that the respondent Bank is not entitled to increase in the amount of monthly instalments due from the petitioners, with respect to the loan availed by the petitioners from the respondent Bank. From the facts of the case it is evident that, with respect to the dispute pertaining to the rate of interest applicable, two civil suits are pending. It is stated that in one of the suits there was an interim order issued by the Civil Court restraining the respondent Bank from charging interest at the rate of more than 9 %, which was subsequently vacated. It is further stated that an appeal suit was filed against the said interim order and the appellate court had ordered to continue the stay granted, as per Ext.P8. It is further stated that when the proceedings under the SARFAESI Act was initiated on an earlier occasion, the petitioner had approached this Court and in Ext.P9 2 W.P.(C).No.15755 of 2011 judgment this Court had permitted regularisation of the account and reclassification of the debt as performing asset. According to the petitioner, pursuant to Ext.P9 the overdue amounts were paid and the account in question were already reclassified. 2. Present grievance of the petitioner is that, the unilateral increase in the rate of monthly instalments effected through Ext.P10 is unsustainable. Petitioner apprehends that the respondent may take further steps under the SARFAESI Act, alleging default in payment of instalments at the enhanced rate. Therefore, interference with Ext.P10 is sought for. 3. Considering the factual situation as stated above, I am of the considered opinion that, the dispute raised pertaining to the increase in the rate of monthly instalments, is not a matter which can be adjudicated by this Court in a writ petition filed under Article 226. The issue is one arising out of the contractual obligations of the parties contained in the terms of the loan agreement. 3 W.P.(C).No.15755 of 2011 Moreover, it is evident that issue pertaining to the rate of interest applicable is a matter pending adjudication before the civil court. It is also pertinent to note that the respondent has not initiated any steps under the SARFAESI Act till date and the petitioner is not challenging any such steps in this writ petition. 4. Under the above circumstances, I am of the view that, the petitioner will be at liberty to seek appropriate relief against Ext.P10, either in the pending civil litigations or by invoking statutory remedy as provided under the SARFAESI Act. Reserving liberty of the petitioner as mentioned above, the writ petition is dismissed. C.K.ABDUL REHIM, Judge ami/