IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN WEDNESDAY, THE 5TH NOVEMBER 2008 / 14TH KARTHIKA 1930 WP(C).No. 32492 of 2008(R) -------------------------- PETITIONER: --------------- N.P.THOMAS, S/O.N.T.PAUL, NADAKKAL HOUSE, PADINJATTUMBHAGOM DARA, ATHIRAMPUZHA VILLAGE, KOTTAYAM TALUK, KOTTAYAM DISTRICT. BY ADV. SRI.TOM JOSE (PADINJAREKARA) RESPONDENTS: --------------- 1. STATE BANK OF TRAVANCORE, ETTUMANOOR BRANCH, KOTTAYAM DISTRICT, REPRESENTED BY ITS CHIEF MANAGER AND AUTHORIZED OFFICER. 2. THE UNION OF INDIA, REPRESENTED BY ITS SECRETARY, MINISTRY OF FINANCE AND COMPANY AFFAIRS, DEPARTMENT OF ECONOMIC AFFAIRS, NEW DELHI. SRI.K.S.DILIP, STANDING COUNSEL FOR R1. SRI.PARAMESWARAN NAIR, ASG THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 05/11/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOTTATHIL B. RADHAKRISHNAN, J. ================================ W.P.(C).No.32492 of 2008 - R =============================== Dated this the 5th day of November, 2008. J U D G M E N T The petitioner availed a cash credit facility, overdrew and the transaction became sticky. After the last financial year, there was no transaction in the account. The bank also has complained that the entire transaction of the petitioner, a businessman, is not routed through the bank. The terms were thus faulted. The loan was recalled and an amount of over Rs.1,10,00,000/- is fixed for recovery with accruals. 2. On the issue of jurisdiction the applicability of the SARFAESI Act is challenged on the ground that the security provided is agricultural land and it is exempted from the provisions of that Act. The only materials in support of this is Ext.P1, a certificate of the agricultural officer which says that the land is fertile, has coconut palms and is fit for agricultural operations. That certificate is by itself not conclusive to hold that issue in favour of the petitioner. Hence, without concluding him on that, the said issue, which is a mixed one of law and facts, is W.P.(C).No.32492 of 2008 - R 2 left open. In God's Own Country, there may not be much space which is not fit for cultivation barring the rocky patches which may be unfit. 3. There is no other legal impediment or infirmity pointed out or seen in the impugned proceedings. The plea of the petitioner that Ext.P6 was issued seeking an opportunity to regularise and that the same has not been replied would also not stand, since bank has apparently disagreed to do so. It is also stated by the learned counsel for the bank that it had replied to Ext.P6. 4. Under such circumstances, preserving the liberty of the petitioner to seek relief in accordance with law, this writ petition is ordered directing that the distress action will stand stayed, if the petitioner deposits an amount of Rs.25,00,000/- within a period of one week and a further amount of Rs.25,00,000/- within a period of one month thereafter and continues to remit the remaining amounts at the rate of Rs.10,00,000/- per month payable on or before 10th of every month commencing from December, 2008. In default of any of W.P.(C).No.32492 of 2008 - R 3 the instalments as directed above, the benefit of this judgment will stand recalled automatically. This judgment will not preclude the petitioner to move the bank for regularisation of the loan amount which is a matter left to the wisdom of the parties to the contract. The writ petition is disposed of as above. THOTTATHIL B. RADHAKRISHNAN, JUDGE bkn/-