IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM MONDAY, THE 20TH SEPTEMBER 2010 / 29TH BHADRA 1932 WP(C).No. 14763 of 2010(U) ---------------------------------------- CMP.1871/2010 of CHIEF JUDICIAL MAGISTRATE COURT, ALAPPUZHA .................... PETITIONER(S): ----------------------- REJIMON, AGED 37 YEARS, S/O. SIVANANDAN, REKHA NIVAS, AVALOOKKUNNU.P.O., ALAPPUZHA. BY ADV. SRI.B.PRAMOD RESPONDENT(S): -------------------------- 1. THE AUTHORISED OFFICER, HOUSING DEVELOPMENT FINANCE CORPORATION LTD., HDFC HOUSE, 3RD FLOOR, RAVIPURAM JN., M.G.ROAD, KOCHI. 2. THE HOUSING DEVELOPMENT FINANCE CORPORATION LTD., HDFC HOUSE, P.O.BOX.1667, 3RD FLOOR, RAVIPURAM JN., M.G.ROAD, KOCHI. R1 & R2 BY ADV. MR.K.K. CHANDRAN PILLAI, SC. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 20/09/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 14763/2010-U APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE FINAL DISBURSEMENT ADVICE DATED 21/02/2005 ISSUED BY THE 2ND RESPONDENT. EXT.P2: COPY OF THE RECEIPT DATED 04/05/2008 ISSUED BY THE 2ND RESPONDENT. EXT.P3: COPY OF THE LETTER DATED 10/02/2009 ISSUED BY THE 2ND RESPONDENT. EXT.P4: COPY OF THE NOTICE DATED 07/05/2010 ISSUED BY THE ADVOCATE COMMISSIONER BEFORE THE C.J.M. COURT, ALAPPUZHA. EXT.P5: COPY OF THE CASTE CERTIFICATE DATED 06/05/2002 ISSUED TO THE PETITIONER. RESPONDENT'S EXHIBITS: NIL //TRUE COPY// P.S. TO JUDGE rs C. K. ABDUL REHIM, J. =~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~= W.P.(C) No. 14763 of 2010 =~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~= Dated this the 20th day of September, 2010 JUDGMENT Consequent to default committed by the petitioner in repaying the amounts availed as housing loan from the respondents, proceedings under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI Act) was initiated against the immovable property, which was mortgaged for securing the loan. 2. According to the petitioner, the loan was availed in the year 2005 to the tune of Rs.3 lakhs, and the repayment period of 20 years will expire only in the year 2025. It is further stated that the petitioner had effected payments of around Rs.1.5 lakhs. According to him, the default occurred due to an unexpected motor accident in which he was seriously injured. 3. Pursuant to the proceedings initiated under the SARFAESI Act, the respondents had invoked section 14(1) W.P.(C) No. 14763/2010 2 and the Chief Judicial Magistrate Court had already appointed an Advocate Commissioner to take over possession of the property. Ext.P4 is the notice issued by the Advocate Commissioner. It is contended that the petitioner is member of a Scheduled Caste and the property which is now proceeded against is the small extent of land wherein he is residing with his family. If the property is taken over possession, that will cause severe prejudice to him, is the contention. 4. The proceedings under the SERFAESI Act is now at the stage of invoking section 14(1). The petitioner has not opted to challenge any steps initiated earlier, such as demand under section 13(2) or taking over possession under section 13(4). Having not chosen to avail any such statutory remedies, the petitioner could not raise any challenge against the proceedings now pending before the Chief Judicial Magistrate Court, that too in this writ petition. Hence, I am not inclined to interfere with the merits of the contentions. W.P.(C) No. 14763/2010 3 5. However, learned counsel for the petitioner submitted that the petitioner is ready and willing to regularize the loan account by payment of the defaulted amounts along with interest and expenses if any due. Hence, the petitioner is seeking a direction for permitting continuance of repayment as per the original schedule. 6. Learned counsel for the respondents, on the basis of instructions, submitted that the petitioner had committed consecutive defaults and approximately an amount of Rs.40,000/- is outstanding as defaulted instalments. 7. Having considered the facts and circumstances, I am of the opinion that even though interference on merit is not possible, indulgence can be shown in the matter of regularization. Accordingly, the writ petition is disposed of directing the petitioner to make payment of the entire outstanding arrears (defaulted instalments along with interest and expenses if any due) in two equal monthly instalments falling due on or before 15-11-2010 and 15-12- 2010. The petitioner shall make payment of the regular W.P.(C) No. 14763/2010 4 instalments due with respect to the months of November, 2010 and December, 2010. along with the above said payments. 8. If payments in the loan account is regularized as directed above, the respondents shall permit the petitioner to continue payment of future monthly instalments in accordance with the original schedule. 9. In case there is any default committed in payment of any of the instalments, the respondents will be at liberty to proceed with further steps pursuant to the notices already issued in the proceedings pending before the Chief Judicial Magistrate Court. It is also made clear that the above benefit is granted subject to the condition that the petitioner is precluded raising any further challenge against the proceedings, either before this Court or before any other forum. C. K. ABDUL REHIM, JUDGE. mn.