IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM THURSDAY, THE 2ND DECEMBER 2010 / 11TH AGRAHAYANA 1932 WP(C).No. 32238 of 2010(D) -------------------------- PETITIONER(S): --------------- SANTHAKUMARI, AGED 51 YEARS, D/O.SUMATHI, THOPPIL VEEDU, K.C.2020, MUNDAKKAL EAST 38, KOLLAM. BY ADV. SRI.C.RAJENDRAN RESPONDENT(S): --------------- 1. THE KOLLAM CO-OPERATIVE URBAN BANK LTD.NO.960, KOLLAM-691 001, REPRESENTED BY ITS GENERAL MANAGER. 2. THE AUTHORIZED OFFICER, (GENERAL MANAGER), THE QUILON CO-OPERATIVE URBAN BANK LTD.NO.960, KOLLAM-691 001. 3. DAYAK.B.S., ADVOCATE COMMISSIONER, ADVOCATE, KOLLAM-691 001. 4. S.BALACHANDRAN, THOPPIL VEEDU, K.C.2020, MUNDAKKAL EAST 38, KOLLAM-691 001. ADV. SRI.N.DHARMADAN, SENIOR ADVOCATE FOR R1 SMT.D.P.RENU FOR R1 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 02/12/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: C.K.ABDUL REHIM, J --------------------------------------- W.P(C) No.32238 of 2010-D ---------------------------------------- Dated this the 2nd day of December, 2010. J U D G M E N T The petitioner is a guarantor with respect to a loan availed by the 4th respondent from the 1st respondent Bank. Immovable property belonging to the petitioner was mortgaged for securing the loan. Consequent to default committed by the 4th respondent in repayment of the loan, the 1st respondent had initiated proceedings under the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI Act). Invoking provisions contained in Section 14(1) the Chief Judicial Magistrate Court was approached and that Court had appointed an Advocate Commissioner to take over possession of the immovable property. Ext.P3 is the notice issued by the Advocate Commissioner (3rd respondent). 2. According to the petitioner, after availing the loan in question, the 4th respondent went to Gulf countries and W.P(C) No.32238 of 2010-D 2 he met with an accident. Therefore the 4th respondent could not make payments in the loan account as per the schedule. However, it is conceded that the 4th respondent is the sister's son of the petitioner. The petitioner is seeking indulgence of this Court in directing the respondents to keep in abeyance further coercive steps against the property, on the basis of an undertaking that she will pay the entire amounts in a phased manner, with a view to save the property from being sold. 3. Heard, standing counsel appearing for respondents 1 and 2. It is stated that total amount outstanding in the loan account is more than Rs.2.32 lakhs and the loan in question is in chronic default. It is further stated that, neither the borrower nor the guarantor had taken any earnest efforts to pay off the liability inspite of repeated demands made. 4. Considering the fact that the petitioner had not resorted to any of the statutory remedies available, at any stage of the proceedings initiated under the SARFAESI Act, W.P(C) No.32238 of 2010-D 3 it is not just and proper for this Court to restrain respondents 1 and 2 from proceeding with the impugned steps. This is especially in view of the directive issued by the Hon'ble Supreme Court in United Bank of India V Sathyawati Tondon & others (2010(8) SCC 110). 5. However, learned counsel for the petitioner submitted that the petitioner is not intending to invoke any of the statutory remedies and that she is relinquishing all challenges against the proceedings. On the other hand, the limited prayer is only to permit the petitioner to make payment of the entire arrears within a reasonable time, in instalments, in order save the property from being sold. It is noticed that, pursuant to an interim order issued by this Court on 21.10.2010, the petitioner had remitted a sum of Rs.50,000/-. 6. Eventhough interference on merits is not proper, I am of the view that indulgence can be shown in permitting the petitioner to pay off the liability in instalments within a reasonable time. W.P(C) No.32238 of 2010-D 4 7. Accordingly, the writ petition is disposed of directing respondents 1 to 3 to refrain from proceeding with any further steps on the basis of Ext.P3 notice, subject to condition of the petitioner remitting the entire balance outstanding along with interest if any due, in 10 (ten) equal monthly instalments falling due on or before 31.1.2011 and on or before the last day of succeeding months. 8. It is made clear that on the event of default in payment of any one of the instalments the respondents will be free to proceed with further steps pursuant to the orders already issued by the Chief Judicial Magistrate Court. It is made clear that the above relief is granted subject to condition that the petitioner is precluded from raising any subsequent challenge against the proceedings. Sd/- C.K.ABDUL REHIM JUDGE //True Copy// P.A to Judge ab