IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM MONDAY, THE 6TH DECEMBER 2010 / 15TH AGRAHAYANA 1932 WP(C).No. 31540 of 2010(N) -------------------------- CMP.1867/2010 of C.J.M., ALAPPUZHA .................... PETITIONER(S): --------------- JYOTHILAL, THOTTUNKAL, KAYIPPURAM, MUHAMMA P.O., ALAPPUZHA - 688525. BY ADV. SRI.JOHN BRITTO SRI.C.A.RAJEEV RESPONDENT(S): --------------- 1. ALAPPUZHA DISTRICT CO-OPERATIVE BANK LTD. MUHAMMA BRANCH, MUHAMMA P.O., ALAPPUZHA - 688525 REPRESENTED BY THE BRANCH MANAGER. 2. THE AUTHORIZED OFFICER, ALAPPUZHA DISTRICT CO-OPERATIVE BANK ALAPPUZHA - 688 001. ADV. SRI.P.K.VIJAYAMOHANAN - SC THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 06/12/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: C.K.ABDUL REHIM, J --------------------------------------- W.P(C) No.31540 of 2010-N ---------------------------------------- Dated this the 6th day of December, 2010. J U D G M E N T Ext.P3 notice issued by the Advocate Commissioner appointed by the Chief Judicial Magistrate Court, Alappuzha, in C.M.P.No.1867 of 2010, is under challenge in this writ petition. Consequent to default committed by the petitioner in repaying a loan availed from the respondent Bank, proceedings under the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI Act) was initiated. On invoking Section 14(1), the respondents have approached the Chief Judicial Magistrate Court and an Advocate Commissioner was appointed to take over possession of the property. 2. According to the petitioner the proceedings under the SARFAESI Act was initiated in an illegal and irregular manner. It is stated that the tenure of the loan is 84 months, which will expire only in the year 2014, and inspite W.P(C) No.31540 of 2010-N 2 of approaches made by the petitioner promising to regularise the account, the respondent Bank is proceeding with coercive steps. It is further stated that the petitioner had remitted considerable amounts in order to show his bonafides and that he is ready and willing to clear the arrears in order to regularise the account, within a short period. 3. In the counter affidavit filed on behalf of the respondents it is mentioned that, there was no remittance for the last eight months and there is a total outstanding of `75,463/-. It is further stated that if the petitioner is ready and willing to clear above said amount within a month and is prepared to remit the instalments in future without any default, the Bank will defer the proceedings now initiated under the SARFAESI Act. 4. Since effective statutory remedies are provided under the SARFAESI Act, this Court was not inclined to interfere with the proceedings in any manner. However, learned counsel for the petitioner submitted that he will W.P(C) No.31540 of 2010-N 3 clear the payment of the arrears outstanding within a short period and that the petitioner is relinquishing all challenges against the proceedings initiated under the SARFAESI Act, and that he is not intending to invoke any statutory remedies. Pursuant to an interim direction issued by this Court, the petitioner had already remitted a sum of Rs.30,000/-. 5. Considering the facts and circumstances, I am of the view that, the petitioner can be permitted to regularise the account by paying the defaulted amounts within a short time. 6. Accordingly, the writ petition is disposed of directing the respondents keep in abeyance all further steps of recovery initiated pursuant to Ext.P3 notice, subject to condition of the petitioner remitting the amount in default (defaulted instalments along with interest and expenses if any due) in 2 (two) equal monthly instalments, falling due on or before 30.12.2010 and on or before 31.1.2011. The petitioner shall also make payment of the regular W.P(C) No.31540 of 2010-N 4 instalments due for the months of December 2010 and January 2011, along with such payments. 7. If payment of defaulted amounts is cleared as per the stipulations contained above, the respondents shall permit the petitioner to continue payment of the future monthly instalments in terms of the original schedule of repayment. 8. It is made clear that on the event of default in payment of any one of the instalments or any future monthly instalments, the respondents will be free to proceed with further steps. 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