IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON WEDNESDAY, THE 21ST JULY 2010 / 30TH ASHADHA 1932 WP(C).No. 22334 of 2010(N) -------------------------- CMP.3407/2010 of C.J.M.,KOLLAM .................... PETITIONER: --------------- LALU .S, KAVADI KIZHAKKATHIL VEEDU 'ASRAMAM PO, KOLLAM 691 002 BY ADV. MR. B.SURESH KUMAR RESPONDENTS: --------------- THE STATE BANK OF INDIA REPRESENTED BY ITS CHIEF MANAGER RASMECCC, 2ND FLOOR, RAVIS ARCADE NEAR IRON BRIDGE, KOLLAM 691 013. BY STANDING COUNSEL MR. R.S. KALKURA THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 21/07/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.R. RAMACHANDRA MENON J. ~~~~~~~~~~~~~~~~~~~~~~~ W.P. (C) No. 22334 of 2010 ~~~~~~~~~~~~~~~~~~~~~~~ Dated, this the 21st day of July, 2010 JUDGMENT The petitioner had availed a loan of Rs. 3 lakhs from the respondent Bank, which is described as 'home sector term loan', on 29.9.2004, creating security interest over the property in question. But, the repayments were not effected on time, which made the petitioner a defaulter, under which circumstances, the Bank declared the account of the petitioner as 'NPA' and proceeded with further steps under the SARFAESI Act, for realization of the entire amount due under the loan transaction, finally leading to a petition filed before the concerned Chief Judicial Magistrate, under Section 14 of the Act, so as to render necessary assistance to take physical possession of the property. Pursuant to Ext. P3 order passed by the learned Chief Judicial Magistrate, an Advocate Commissioner was appointed, who issued notice on 17.6.2010, stating that the physical possession would be taken over by him on 21.7.2010. But, to the utter shock and surprise to the petitioner, the Commissioner issued fresh notice on 8.7.2010 as borne by Ext. P5, informing that the possession will be taken over on 13.7.2010 and accordingly, the petitioner was dispossessed on 13.7.2010 itself. W.P. (C) No. 22334 of 2010 : 2 : 2. The learned counsel for the petitioner submits that, the default was never wilful but because of some unforeseen circumstances and that earnest efforts were being made to clear the liability by effecting payments at different points of time, as revealed from Ext. P2 receipt. It is stated that, pursuant to the instruction of the Bank, the petitioner deposited a sum of Rs. 50,000/- (Rupees Fifty thousand only), as revealed from Ext. P2 receipt and that the petitioner was assured that the liability should be cleared in a phased manner, who accordingly effected some payments, despite which, the respondents proceeded with further steps, taking over the physical possession of the residential building, which hence is sought to be intercepted. 3. The learned standing counsel appearing for the respondent Bank, on instructions, submits that, the petitioner was a chronic defaulter right from the beginning and as on date, the liability will come nearly Rs. 4 lakhs. It is also stated that the course pursued by the Advocate Commissioner taking possession of the property on 13.7.2010 is in conformity with the direction given by the learned Chief Judicial Magistrate, vide Ext.P3. It is pointed out that, after giving necessary direction to the Commissioner, the matter was adjourned to 8.7.2010 for filing the report. It was in the said circumstances, that the W.P. (C) No. 22334 of 2010 : 3 : Commissioner who had issued Ext.4 notice earlier intending to take over possession of the building, on 21.7.2010, later thought it fit to issue Ext. P5 notice on 8.7.2010 to take over the possession on 13.7.2010, so as to have filed the report before the Chief Judicial Magistrate, in conformity with the order. Obviously, it is stated in paragraph 2 of Ext. P3 Order that, the Commissioner was to issue 30 days' notice before executing the order. It was accordingly, the matter was adjourned to 8.7.2010 for the report i.e. immediately on expiry of 30 days. Time stipulated by the Chief Judicial Magistrate was to issue a clear notice of 30 days before the order was executed. But Ext. P4 notice was issued only on 17.6.2010. As such, the possession taken over by the Advocate Commissioner on 13.7.2010 is contrary to the order passed by the learned Magistrate. The course pursued by the Advocate Commissioner issuing Ext. P5 revised notice dated 8.7.2010 in this regard does not appear to be correct or sustainable. 4. Coming to the question of liability, the fact remains that the petitioner committed default of several installments, which accordingly comes nearly Rs. 1.5 lakhs in respect of the defaulted EMIs. Since the loan provided to the petitioner pertains to 'housing sector', this Court finds it fit and proper to give one more opportunity to the petitioner to have the loan account regularized. Accordingly, the petitioner is W.P. (C) No. 22334 of 2010 : 4 : directed to clear the entire 'overdue' amount in respect of the defaulted EMI's by way of 'two' equal monthly installments; the first of which shall be effected on or before the 30th of the August, 2010, to be followed by the next installment to be effected on or before the 30th of the September, 2010; subject to which, the coercive proceedings stated as being pursued against the petitioner shall be kept in abeyance, for the time being. On satisfying the first installment as above, the possession of the premises taken over by the Bank in a wrong manner shall be restored forthwith. This will be in addition to the petitioner's liability to effect the regular monthly installments. It is made clear that, if the petitioner commits any default in effecting payments towards the defaulted EMIs as above, of if any two consecutive defaults are committed in respect of regular EMIs, the respondent will be at liberty to proceed with further steps for realization of the entire amount in a lump. The Writ Petition is disposed of. P. R. RAMACHANDRA MENON, JUDGE kmd