IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM TUESDAY, THE 25TH JANUARY 2011 / 5TH MAGHA 1932 WP(C).No. 34974 of 2010(V) -------------------------- PETITIONER(S): --------------- E.K.SIVADASAN, AGED 56, S/O.KUTTAPPAN, PROPRIETOR, M/S.PRAKASH STORES, KONATHUKUNNU, THRISSUR. BY ADV. SRI.P.J.MATHEW SRI.THOMAS JOHN AMBOOKEN RESPONDENT(S): --------------- 1. I.C.I.C.I.BANK LTD., REP. BY BRANCH MANAGER, CHURCH VIEW, KODUNGALLOOR ROAD, IRINGALAKUDA, PIN-680125. 2. THE AUTHORISED OFFICER, I.C.I.C.I.BANK LTD., I.C.I.C.I.BANK TOWERS-RMAG, S.B-24, SOUTH PHASE, 4TH FLOOR, WEST WING, AMBATTUR INDUSTRIAL ESTATE, AMBATTUR, CHENNAI-600058. 3. THE VILLAGE OFFICER, THEKKUMKARA VILLAGE, KONATHUKUNNU, THRISSUR DISTRICT. ADV. SRI.KKM.SHERIF FOR R1,2 SRI.A.A.ZIYAD RAHMAN FOR R1-2 SRI.V.R.REKESH FOR R1-2 GOVERNMENT PLEADER SRI.MATHEW GEORGE VADAKKEL THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 25/01/2011, ALONG WITH WP(C) NO. 38674 OF 2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: C.K.ABDUL REHIM, J -------------------------------------------------- W.P(C) Nos.34974/2010 & 38674/2010 -------------------------------------------------- Dated this the 25th day of January, 2011. J U D G M E N T The petitioner in W.P(C) No.34974/2010 is the borrower, who availed loan from respondents 1 and 2, to the tune of Rs.1,28,10,000/-, for business purposes. The 1st petitioner in W.P(C) No.38674/2010 is the father, and the 2nd petitioner therein is the brother of petitioner in W.P(C) No.34974/2010. They were guarantors to the loan transaction. 2. Consequent to default committed in repayment of the loan in question, the respondent Bank initiated proceedings under the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI Act). Ext.P1 in both these writ petitions is the demand notice issued under Section 13(2) of the SARFAESI Act. It is evident that a huge amount of Rs.1,48,06,961/- is due as on 30.9.2009, along with future interest. According to the petitioners they made approach W.P(C) No.34974 of 2010-V 2 before the respondents to settle the payment before the end of December 2010. But the respondents refused to accept such offer and took steps to proceed against the secured assets by invoking Section 14(1) of the SARFAESI Act. It is stated the District Collector was approached in this regard and steps for taking over possession of the property was pursued. 3. The challenge made in these two writ petitions are against notices issued under Section 13(2). It is pertinent to note that inspite of the contentions that the petitioners approached the respondent Bank, nothing is produced to show that the petitioners had submitted any objection/representation to the authorised officer when the demand under Section 13(2) was received. Further it is noticed that the petitioners have not availed the statutory remedy as provided under Section 17(1), against steps initiated under Section 13(4). Under such circumstances, it is not just and proper on the part of this Court to interdict with the proceedings, especially in view of the mandate of W.P(C) No.34974 of 2010-V 3 the Hon'ble Supreme Court in the decision reported in United Bank of India V Sathyawati Tondon & others (2010(8) SCC 110). 4. However, as a gesture of indulgence, this Court had issued an interim order in W.P(C) No.34974/2010, on 25.11.2010, restraining the respondent from taking over physical possession of the property, subject to condition of the petitioner remitting a sum of Rs.35,00,000/- within one month thereof. The said interim order was issued specifically taking note of the submissions that the petitioner is pursuing steps for settling the liability with the respondents within a short time. So also in W.P(C) No.38674/2010 a similar interim order was issued on 28.12.2010 stipulating the petitioners therein to make payment of a sum of Rs.25,00,000/- on or before 14.1.2011. It is noticed that the amount stipulated in both the writ petitions has not been paid till date. 5. Under the above circumstances, I am not inclined to entertain these writ petitions any further. However, W.P(C) No.34974 of 2010-V 4 statutory remedy if any available to the petitioners, is kept left open. 6. Under the above circumstances, the writ petitions are dismissed, without prejudice to rights if any available to the petitioners to pursue statutory remedy provided under the SARFAESI Act. 7. It is made clear that, this judgment will not stand in the way of the petitioners settling payment of the amounts due with the respondent Bank, or in seeking waiver of interest/penal interest or expenses to the possible extent. C.K.ABDUL REHIM JUDGE ab W.P(C) No.34974 of 2010-V 5