IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM FRIDAY, THE 24TH SEPTEMBER 2010 / 2ND ASWINA 1932 WP(C).No. 28217 of 2010(B) --------------------------------------- PETITIONER(S): ----------------------- S.RADHAMANY, AGED 44, D/O.SULOCHANA, RESIDING AT PULIVILAKATHU VEEDU, KARIMANAL, KULATHOOR P.O., THIRUVANANTHAPURAM. BY ADV. SRI.A.B.MOHANA KUMAR RESPONDENT(S): -------------------------- 1. THE AUTHORISED OFFICER (THE CHIEF MANAGER), VIJAYA BANK, THIRUVANANTHAPURAM MAIN BRANCH, SWASTIK CENTRE, M.G.ROAD, G.P.O., THIRUVANANTHAPURAM-1. 2. RAJAN I.N., RESIDING AT MYTHRI NAGAR THIRUMALA P.O., THIRUVANANTHAPURAM-695 006. 3. GIRIJA.B., W/O.RAJAN.I.N., MYTHRI NAGAR, THIRUMALA P.O., THIRUVANANTHAPURAM-695 006. 4. SHYNI.L., W/O.SUNIL RAJ, RESIDING AT MYTHRI NAGAR, THIRUMALA P.O., THIRUVANANTHAPURAM-695 006. R1 BY ADV. SRI.K.ANAND (A.201) SMT.LATHA KRISHNAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 24/09/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sts C.K.ABDUL REHIM, J. ------------------------------------------- W.P.(C).No.28217 of 2010 ------------------------------------------- Dated this the 24th day of September, 2010 J U D G M E N T ---------------------- This writ petition is filed by the petitioner, who is aggrieved by the steps initiated by the 1st respondent under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI Act) against respondents 2 to 4. The petitioner is neither a borrower nor a guarantor with respect to the loan transaction. It is stated that the proceedings was initiated consequent to default committed by the 2nd respondent in repaying a loan availed by him from the 1st respondent Bank. Respondents 3 and 4 are allegedly the sureties (guarantors) with respect to the loan transaction. 2. Case of the petitioner is that the property which is now proceeded against, which is the secured asset as far as the loan transaction is concerned, was in the name of the petitioner, upon which she derived title by virtue of Ext.P1 sale deed. It is stated that on the request of the 2nd respondent an ostensible conveyance of the property was W.P.(C).28217/10-B -2- effected in favour of the 2nd respondent, for facilitating him to avail a loan from the 1st respondent. It is alleged that the petitioner was residing in the property in question. However, pursuant to proceedings initiated under the SARFAESI Act the petitioner was dispossessed and the 1st respondent Bank took over possession of the property. The limited prayer of the petitioner is to permit her to pay off the entire liability in order to save the property from being sold. 3. Learned counsel appearing for the 1st respondent submitted that the petitioner is a total stranger as far as the loan transaction is concerned. It is pointed out that the petitioner herself had admitted that the property was conveyed in favour of the 2nd respondent prior to creation of the mortgage. As far as loan transaction is concerned, the property in question is the secured asset and the 1st respondent was fully justified in proceeding against the property under the SARFAESI Act, is the contention. The 1st respondent also denied the contention that the petitioner was residing in the property. It is also contended that now the property is in the possession of the 1st respondent and they are proceeding with steps for effecting sale. 4. Considering the facts and circumstances as well as W.P.(C).28217/10-B -3- the submission made by both sides, I am not at all inclined to interfere with the impugned proceedings in any manner. The locus standi of the petitioner for filing this writ petition itself is under challenge. Further it is noticed that there are no proceedings initiated against the petitioner and admittedly the title of the property vests with the 2nd respondent. Even assuming that the petitioner can be permitted to wipe off the entire liability, the mortgage could not be redeemed in favour of her as she does not hold title over the property. 5. Under such circumstances the writ petition is devoid of any merit and the same is liable to be dismissed. However, learned counsel appearing for the petitioner made a fervent appeal for indulgence of this court in permitting payment of the entire arrears due to the 1st respondent in the loan transaction in order to save the property being sold under the SARFAESI proceedings. Eventhough interference on merits is not possible, I am inclined to show indulgence in the matter of permitting the petitioner to pay off the entire liability due to the 1st respondent, within a reasonable time. 6. Accordingly the writ petition is disposed of directing the 1st respondent to keep in abeyance further steps for sale of W.P.(C).28217/10-B -4- the secured assets, subject to condition of the petitioner remitting the entire balance outstanding in the loan account in 5 (five) equal monthly installments falling due from 15.10.2010 onwards and on or before the 15th day of the succeeding months. 7. It is made clear that, if the entire amount is cleared payment, the 1st respondent shall close the loan account and release the title deed to the person who had created the mortgage. 8. It is also made clear that on the event of default in payment of any one of the installments, the 1st respondent will be free to proceed with further steps for sale of the property. 9. 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 the proceedings. C.K. ABDUL REHIM, JUDGE. okb