IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON WEDNESDAY, THE 29TH JULY 2009 / 7TH SRAVANA 1931 WP(C).No. 20533 of 2009(J) -------------------------- CMP.2507/2009 of C.J.M.,TRIVANDRUM .................... PETITIONERS: --------------- 1. M/S.KAIKARA CONSTRUCTION COMPANY, A PARTNERSHIP FIRM, REPRESENTED BY ITS MANAGING PARTNER, A.ABDUL SALAM, KAITHAVARAM BUNGALOW, KANKATHUMUKKU, KOLLAM. 2. A.ABDUL SALAM, KAITHAVARAM BUNGALOW, KANKATHUMUKKU, KOLLAM. 3. JUVAIRY SALAM, KAIKKARA BUNGLOW, HOUSE NO.S.320, SREEPURAM LANE, POOJAPPURA, THIRUVANANTHAPURAM. BY ADV. MR. P.B.SURESH KUMAR MR. K.P.SUJESH KUMAR MR. K.N.SASIDHARAN NAIR MS. SANDHYA RADHAKRISHNAN MS. M.SRUTHY RESPONDENTS: --------------- 1. SOUTH INDIAN BANK, REPRESENTED BY ITS CHIEF GENERAL MANAGER, SOUTH INDIAN BANK, S.I.B.HOUSE, T.B.ROAD, THRISSUR-1. 2. CHIEF GENERAL MANAGER, SOUTH INDIAN BANK, S.I.B.HOUSE, T.B.ROAD, THRISSUR-1. 3. DEPUTY GENERAL MANAGER, CREDIT DEPARTMENT, SOUTH INDIAN BANK, P.B.NO.28, THRISSUR-680 001. 4. CHIEF MANAGER, SOUTH INDIAN BANK, BISHOP JEROME NAGAR, CHINNAKADA, KOLLAM. 5. AUTHORISED OFFICER, SOUTH INDIAN BANK, REGIONAL OFFICE, HOTEL SAFA INTERNATIONAL BUILDING MALAYALA MANORAMA ROAD, THIRUVANANTHAPURAM. ADV. MR. GEORGE VARGHESE (MANACHIRACKEL) THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 29/07/2009, THE COURT ON 29/07/2006 DELIVERED THE FOLLOWING: P.R. RAMACHANDRA MENON J. ~~~~~~~~~~~~~~~~~~~~~~~ W.P. (C) No. 20533 of 2009 ~~~~~~~~~~~~~~~~~~~~~~~ Dated, this the 29th day of July, 2009 JUDGMENT The case has got a long history. The petitioner Company had availed different loans from the respondent Bank on the guarantee of the petitioners 2 and 3, creating security interest over the different properties (55 items of properties), including the residential building situated at Trivandrum (where petitioner is residing) and another residential building in Kollam (where daughter of the petitioner is residing). Subsequently, the borrower turned to be a defaulter and they could not honour their commitment in repaying the due installments, under which circumstance, there was no other alternative for the Bank than to declare the account as 'NPA', followed by the coercive steps under the SARFAESI Act. 2. Met with the said circumstances, the 1st petitioner Company approached this Court earlier by filing WP (C) 2251 of 2009, which led to Ext.P6 judgment. As noted there in, during the course of hearing, various proposals were made from the part of the petitioner as well as the Bank, whereby the relative rights and interests were sought to be protected to the agreed extent and the matter was disposed, recording the submissions. WP (C) No. 20533 of 2009 : 2 : 3. Subsequently, according to the petitioners, the Bank did not choose to keep their word and proceeded with the further coercive steps, under which circumstance, the first petitioner was constrained to approach this Court by filing WP (C) 18325 of 2009, leading to Ext.P7 judgment. It is stated that, the petitioner was taking earnest efforts to see that the liability was cleared somehow or the other and that attempt was made to have 'private sale' of three items of properties, which course is very much permissible as provided under the relevant Rules. Pursuant to the negotiation between the parties, it was stipulated and agreed that the petitioner would remit 185 lakhs on or before the 30th of September, 2009 (as confirmed by the learned counsel appearing for the Bank as well), subject to the condition that, the petitioner remitted Rs. 15 lakhs on or before the 31st of this month and another sum of Rs. 10 lakhs on or before the 30th of August, 2009, on further condition that, the balance amount of Rs. 1.6 crores would be remitted on or before the 30th of September, 2009. On satisfying the amount as above, it was made clear by this Court that, the title deeds pertaining to the 3 items of the properties referred to therein would be released to the petitioner without any encumbrance, so as to facilitate 'private sale' for generating funds to discharge the remaining liability to the Bank. 4. The petitioners have again approached this Court, by filing the present Writ Petition, stating that, notwithstanding the sequence of WP (C) No. 20533 of 2009 : 3 : events so far, the respondent Bank is proceeding with the further coercive steps as borne by Ext.P8 filed before the Chief Judicial Magistrate's Court, Trivandrum for facilitating eviction with the help of police invoking the power under Section 14 of the SARFAESI Act. The case, now projected by learned counsel for the petitioner is that, the petitioners would definitely honour the commitment and that they having got sufficient time to comply with the stipulation as contained in Ext.P7 judgment, the residential properties in Trivandrum and Kollam might be spared, for the time being. 5. The learned counsel for the respondent Bank submits that, the Bank has never deviated from the stand already made clear before this Court, and that Ext. P8 petition was obviously filed before the concerned Magistrate's Court much before Ext.P7 judgment. It is also brought to the notice of this Court, that the properties dealt with in Ext.P8 do not include the 3 items of properties mentioned in Ext.P7. The learned counsel further submits with reference to the schedule mentioned in Ext.P8 that, there are two different residential buildings situated in two different extents of properties situated in survey Nos. 1781/6 and 1781/6-1 of the Thirumala village in Trivandum Taluk. The learned counsel for the petitioner submits that, though different extent of properties are mentioned thereunder, altogether it is situated in the same survey number with different sub division number, asserting that WP (C) No. 20533 of 2009 : 4 : the entire extent of 17 cents of land was purchased as two separate lots under two different sale deeds and that the residential building concerned is situated in the joint property as above, which explanation appears to be very much plausible. 6. As noted herein before, 55 different items of properties have been offered, creating security interest therein and the petitioners have absolutely no objection, as put forth by the learned counsel, in proceeding against any of the properties either jointly or together; except the properties involving the residential building and also the 3 items of properties covered by Ext.P7. It is also pointed out by the learned counsel that, the sale proceedings could go on and that the residential properties in Trivandrum and Kollam might be subjected to sale only as the last two items, if the sale of the other properties (except the properties covered by Ext.P7) does not fetch requisite amount to satisfy the liability towards the Bank. Though there is no vested right for the petitioners to raise any such contention and the Bank cannot be found fault with in view of the security interest created over the properties; this Court finds it fit and proper that the interest of justice could be met, if the sale of the properties concerned is permitted as suggested by the learned counsel for the petitioner, which in turn is not likely to cause any prejudice to the Bank, whose interest stands well secured, especially when the sale of the residential properties WP (C) No. 20533 of 2009 : 5 : concerned could also be conducted on the very same day, if the sale in respect of the other items does not procure the necessary amount. The submission made by the learned counsel for the petitioners that, the respondent Bank need not proceed with Ext.P8 before the concerned Magistrate's Court and that petitioners are ready and willing to surrender the properties wherein the residential buildings are situated as and when necessitated is recorded. The petitioners will be at liberty to arrange prospective bidders or purchasers for sale of the properties and the sale consideration shall be deposited with the Bank to the extent it is necessary to discharge the entire liability. It is also made clear that, such a step or course will never place any hurdle on the way of the Bank in proceeding with the sale as scheduled. The Writ Petition is disposed of accordingly. P. R. RAMACHANDRA MENON, JUDGE kmd