IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM MONDAY, THE 8TH NOVEMBER 2010 / 17TH KARTHIKA 1932 WP(C).No. 24617 of 2010(B) -------------------------- PETITIONER: ------------------ V.SHAJI, AGED 38 YEARS, S/O.ABOOBAKKAR, VAKAYIL HOUSE, AIROR, PERUMPADAPU, MALAPPURAM DISTRICT. BY ADVS. SRI.NAGARAJ NARAYANAN SRI.SAIJO HASSAN SRI.RAJAN VELLOTH SRI.SABU SREEDHARAN SRI.BINOJ C AUGUSTIN SRI.PRATHAP PILLAI SRI.RAFEEK.V.K. RESPONDENT: -------------------- MANAGER, HEAD OFFICE, MALAPPURAM DISTRICT CO-OPERATIVE BANK, MALAPPURAM PO - 676505 BY ADVS. SRI.E.K.MADHAVAN SRI.P.M.POULOSE SRI.V.KRISHNA MENON SMT.P.VIJAYAMMA THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 08/11/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: VK C.K.ABDUL REHIM, J --------------------------------------- W.P(C) No.24617 of 2010-B ---------------------------------------- Dated this the 8th day of November, 2010. J U D G M E N T The petitioner availed a loan to the tune of Rs.9,00,000/- from the respondent Bank, by mortgaging immovable property belonging to him. Consequent to default committed in repayment, the respondent had initiated proceedings under the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI Act). Ext.P1 is the notice issued intimating steps taken under Section 13(4) of the Act. 2. According to the petitioner he had remitted nearly an amount of Rs.8,00,000/- till date, and the amount claimed under Ext.P1 notice is not true and correct. It is also mentioned that the petitioner had approached the Bank seeking instalment facility for payment of the arrears outstanding and without considering such requests the coercive steps are now being pursued. W.P(C) No.24617 of 2010-B 2 3. Considering the dispute pertaining to correctness of the demand raised, this Court directed the respondent to produce a statement of accounts. Accordingly, copy of the statement of accounts was produced along with a memo. It shows that a net balance of Rs.13,36,156/- is due as on 22.9.2010, along with future interest. 4. It is submitted by learned counsel for respondent Bank that, the loan availed by the petitioner is an overdraft facility and the petitioner was not operating his transaction through the account, and the account in question is remaining as inoperative since the loan was availed, for the last more than one year. 5. It is evident that the petitioner has not chosen to challenge the recovery steps initiated under the SARFAESI Act, at the stage when 13(2) notice was issued or at the stage when steps were initiated under Section 13(4). Having not chosen to avail any of the statutory remedies, the dispute now raised before this Court could not be considered. This is especially because, the main dispute W.P(C) No.24617 of 2010-B 3 raised is regarding correctness of the balance outstanding, which is a factual dispute which could not be agitated in this proceedings. 6. Having confronted with the above situation, learned counsel for the petitioner sought for indulgence of this Court in permitting the petitioner to pay off the liability in a phased manner, within a reasonable time. Eventhough interference on merits is not possible, I am of the view that the petitioner can be permitted to pay off the entire balance amount within a reasonable time in instalments. 7. Under the above circumstances, the writ petition is disposed of directing the respondent Bank to keep in abeyance all further coercive steps of recovery initiated pursuant to Ext.P2 notice, provided the petitioner remits the entire amount outstanding along with interest if any due, in 7 (seven) equal monthly instalments falling due on or before 30.11.2010 and on or before the last day of the succeeding months. 8. It is made clear that the above relief is granted W.P(C) No.24617 of 2010-B 4 subject to assurance that the petitioner is relinquishing all challenges against the proceedings and that he is not intending to invoke any statutory remedy. 9. It is further 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 pursuant to the notices already issued. It is further made clear that the above relief is granted subject to condition that the petitioner is precluded from raising any subsequent challenge against such proceedings. C.K.ABDUL REHIM JUDGE ab