IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM THURSDAY, THE 17TH SEPTEMBER 2009 / 26TH BHADRA 1931 WP(C).No. 26093 of 2009(F) -------------------------- CMP.2582/2009 of C.J.M.,MANJERI .................... PETITIONER(S): --------------- K.V.USMAN, AGED 63 YEARS, S/O.ABOOBACKER, OMANOOR KUNNATH HOUSE, P.O.OMANOOR-673 645, CHEEKODE AMSAM, OMANOOR DESAM, ERNAD TALUK, MALAPPURAM DISTRICT. BY ADV. SRI.P.VIJAYA BHANU SRI.P.VENUGOPAL (1086/92) RESPONDENT(S): --------------- HOUSING DEVELOPMENT FINANCE CORPORATION LIMITED, REPRESENTED BY ITS AUTHORIZED OFFICER, HDFC HOUSE, RAVIPURAM JUNCTION, MG ROAD, KOCHI. STANDING COUNSEL SRI.K.K.CHANDRAN PILLAI THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 17/09/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: C.K.ABDUL REHIM,J ---------------------- W.P.(c) No.26093 of 2009 ---------------------------------------- Dated this the 17th day of September 2009 J U D G M E N T The son of the petitioner, who is now working abroad, had availed a loan from the respondent to the tune of Rs.4,00,000/- during the year 2005. Repayments in the loan account was defaulted and the respondent had initiated proceedings under the provisions of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act (SARFAESI Act). After issuing notices under Section 13(2) and 13(4) of the SARFEASI Act, the respondent approached the Chief Judicial Magistrate Court and an Advocate Commissioner was already appointed to take over the possession of the secured assets. It is submitted by the petitioner that the secured assets in this case is the residential property wherein the petitioner is residing and therefore he seeks reasonable time to pay off the entire liability. According to the petitioner, in spite of specific offer made to the respondent for payment of the amount in instalments, the same was not accepted. W.P.(c) No.26093/09 2 2. Learned Standing Counsel appearing for the respondent on instructions submitted that the arrears outstanding as on 16/09/2009 is Rs.3,03,809/-. It is further submitted that for the last 13 months neither the petitioner nor the loanee has made any payment and eleven cheques issued towards repayments has been dishonoured. Under such circumstances, the request for granting instalment facility is opposed. 3. Having considered the rival contentions, I am of the opinion that some indulgence can be shown in the matter to permit instalment payment, eventhough interference on merits with respect to the proceedings under the SARFAESI Act cannot be entertained, in view of availability of the statutory remedy. 4. The writ petition is therefore disposed of, directing the petitioner, who is the father of the defaulter, to make payment of an amount of Rs.75,000/- (Rupees seventy five thousand only) on or before 15/10/2009. The respondent is directed to keep in abeyance further steps pursuant to Ext.P2 proceedings till such date. On payment of the above said amount, the respondent shall furnish a balance statement to the petitioner after crediting all payments, and the petitioner shall W.P.(c) No.26093/09 3 continue to pay the entire balance in five equal monthly instalments starting from 15/11/2009 onwards and on or before the 15th day of the 4 (four) succeeding months. 5. It is made clear that on failure of the petitioner to make payment of the initial amount or any of the subsequent instalments, the benefit granted under this judgment will stand automatically recalled and the respondent will be free to proceed with further steps under the SARFAESI Act without issuing any further notice. It is also made clear that the benefit granted under this judgment is subject to the condition that the petitioner is precluded from raising any subsequent challenge against the proceedings before this court or before any other forum. (C.K.ABDUL REHIM, JUDGE) jsr