IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HON'BLE THE ACTING CHIEF JUSTICE MR.C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN WEDNESDAY, THE 2ND NOVEMBER 2011 / 11TH KARTHIKA 1933 WA.No. 1594 of 2011() ----------------------------- AGAINST THE JUDGEMENT/ORDER IN WPC.20910/2011 Dated 10/08/2011 .................... APPELLANT(S): PETITIONER ------------------------------------------ ZEENATH M., D/O.T.P.MAHAMOOD HAJI, 'MARINE PLAZA', ABAD BUILDING, MARINE DRIVE, NEAR HIGH COURT, ERNAKULAM. BY ADV. SRI.RENJIT GEORGE SRI.RENJIT GEORGE RESPONDENT(S): RESPONDENTS ----------------------------------------------- 1. THE AUTHORIZED OFFICER, STATE BANK OF TRAVANCORE, KANNUR MAIN BRANCH, FORT ROAD, KANNUR - 670 001. 2. THE STATE BANK OF TRAVANCORE, KANNUR MAIN BRANCH, FORT ROAD, KANNUR - 670 001. REPRESENTED BY MANAGER. ADV. SRI.T.SETHUMADHAVAN FOR R1 & 2 SRI.PUSHPARAJAN KODOTH FOR R1 & 2 SRI.K.JAYESH MOHANKUMAR FOR R1 & 2 THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 02/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: C.N.RAMACHANDRAN NAIR, Ag. CJ. & P.S.GOPINATHAN, J ---------------------------------------------- W.A.No. 1594 of 2011 ---------------------------------------------- Dated this the 2nd day of November, 2011 JUDGMENT Ramachandran Nair, Ag.CJ. The appeal is filed against the judgment of the learned Single Judge granting four months time to the appellant to clear entire arrears, out of which Rs.4 lakhs have to be paid within one month. 2. Appellant's case is that time granted by the learned Single Judge is not sufficient and accordingly, the prayer is for time upto 31st March, 2012 to settle the entire liability. 3. Standing Counsel appearing for the Bank opposed stating that cheques issues by the appellant were dishonoured and appellant's commitment cannot be believed. 4. After hearing both sides, what we notice is that the Bank, while granting the loan, wrongly assessed the ability of appellant to repay the loan in monthly instalments of Rs.19,157/- each. WA.1594/11 2 Default in payment of the instalment occurred only in the course of last three years. The appellant has not been able to service the debt with any regularity or punctuality, which only means that the appellant cannot be expected to honour the commitment, even if this Court retains the instalment facility. The appellant has to, therefore, probably sell the property and settle the liability. However, it is contended that the loan is fully secured on the mortgaged property as its value is sufficiently high to discharge full debt. 5. Considering this and the fact that the petitioner has time upto 2015 to settle the loan in instalments, we feel the appellant can be granted time till 31st March, 2012 on the specific condition that if the liability is not fully settled by 31st March, 2012, the appellant will vacate from the premises and hand over possession of the mortgaged property to the Manager of the Bank for sale in auction. Accordingly, we dispose of the Writ Appeal by modifying the judgment of the learned Single Judge as follows: I. Appellant is granted time till 31st March, 2012 to settle full liability with accrued interest, failing which there will be a direction to the appellant to hand over possession of the WA.1594/11 3 mortgaged property to the Manager of the Bank, after vacating from the premises on 1st April itself. II. The appellant shall not part with possession or otherwise further encumber the property, that is the subject matter of mortgage until entire arrears are paid to the Bank as above. III.If appellant wants to negotiate for sale of the mortgaged property, the appellant is free to do so after informing the intending purchaser and an agreement can be executed between the appellant and the purchaser, whereunder on the purchaser depositing the loan amount with interest to the Bank, the Bank will release title deeds to the purchaser. However, sale deed shall be executed only after arrears are cleared either by the appellant or by the purchaser and after the Bank releases the title deed. IV.If the appellant fails to make payment as above and fails to surrender the property, the Bank will move this Court for initiating contempt action against the appellant, besides proceeding to take over possession by approaching the criminal court. WA.1594/11 4 V.Even though the appellant is granted time till 31st March, 2012, we feel if the appellant can raise fund early and offers to clear liability by 31.1.2012, the Bank should show leniency to the appellant by waiving penal interest completely. C.N.RAMACHANDRAN NAIR, ACTING CHIEF JUSTICE P.S.GOPINATHAN, JUDGE vgs