IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM TUESDAY, THE 9TH NOVEMBER 2010 / 18TH KARTHIKA 1932 WP(C).No. 33787 of 2010(W) ---------------------------------- PETITIONER(S): ------------------- 1. K.BABU,S/O.KUNHAMMU,KUNDUR HOUSE, EZHUVATHIRUTHI,PONNANI.P.O,MALAPPURAM DISTRICT. BY ADV. SRI.P.CHANDRASEKHAR RESPONDENT(S): --------------------- 1. MALAPPURAM DISTRICT CO-OPERATIVE BANK LTD., NO.4329, MALAPPURA, REPRESENTED BY ITS GENERAL MANAGER, PIN - 679 573. 2. THE BRANCH MANAGER,MALAPPURAM DISTRICT CO-OPERATIVE BANK LTD,EVENING BRANCH,PONNANI, MALAPPURAM DISTRICT - 679 577. BY ADV. SRI.V.KRISHNA MENON THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 09/11/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: svs C.K.ABDUL REHIM, J. ------------------------------------------- W.P.(C).No.33787 of 2010 ------------------------------------------- Dated this the 9th day of November, 2010 J U D G M E N T ---------------------- The petitioner had availed a loan from the respondent Bank for the repair of his house, during the year 2007, to the tune of Rs.1,25,000/-. As per terms of the loan agreement, the amount was to be repaid in 96 equal monthly instalments. It is stated that regular payment of monthly instalments could not be continued because of unexpected illness of the brother and the mother of the petitioner. It is stated that the petitioner's brother Sri. Shaji became mentally ill and committed suicide on 4.8.2010. It is also mentioned that the mother of the petitioner is suffering from Cancer and is undertaking treatment at Amala Cancer Centre. Various documents are produced in order to show the illness of the mother as well as death of the brother of the petitioner. 2. Consequent to default committed in repayment of the loan, proceedings under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI Act) was initiated as per Ext.P5 notice published by the respondent Bank. According to the petitioner, even though he had expressed willingness to pay off the outstanding arrears in order to regularise the account, the respondents are proceeding with coercive steps. W.P.(C).33787/10-W -2- 3. Learned Standing Counsel for the respondent Bank submitted that even the outstanding arrears will come to Rs.1,48,925/- and the petitioner was consecutively defaulting payments of the monthly instalments. Since the loan account is in chronic default the respondent Bank is not favouring regularisation. 4. Considering the availability of effective remedy provided in the SARFAESI Act, I am not inclined to entertain this writ petition on merits. It is brought to my notice that the petitioner has not resorted to any remedy available under Section 17(1) of the Act, against steps initiated under Ext.P5. 5. Confronted with the above situation learned counsel appearing for the petitioner submitted that the petitioner is not intending to pursue any statutory remedy and that he is prepared to relinquish all the challenges raised against the proceedings initiated under the SARFAESI Act. On the other hand, indulgence was sought for in permitting the petitioner to regularise the loan account by paying the defaulted arrears within a short period. 6. Having considered the facts and circumstances, I am of the view that, even though interference on merits is not possible, the petitioner can be permitted to regularise the account by paying the defaulted amounts within a short period, in W.P.(C).33787/10-W -3- instalments. 7. Accordingly the writ petition is disposed of directing the respondents to keep in abeyance all further steps pursuant to Ext.P5 notice, provided the petitioner remits the entire amount in default (defaulted instalments along with interest and expenses if any due) in 6 (six) equal monthly instalments, falling due on or before 30.11.2010 and on or before the last day of the succeeding months. The petitioner shall also make payment of the regular monthly instalments due from November 2010 onwards, along with the above said payments. 8. If payment of defaulted amount is regularised as directed above, the respondents shall permit the petitioner to continue payment of future monthly instalments in accordance with the original schedule of repayment. 9. It is made clear that on the event of default in payment of any of the amounts as stipulated above or any future monthly instalments, the respondents will be free to proceed with further steps pursuant to the notices already issued. It is also made clear that the relief granted above is subject to condition that the petitioner is precluded from raising any subsequent challenge against such proceedings. C.K.ABDUL REHIM, JUDGE. okb