IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM TUESDAY, THE 15TH SEPTEMBER 2009 / 24TH BHADRA 1931 WP(C).No. 25599 of 2009(T) -------------------------- PETITIONER(S): --------------- 1. AJITHA.M, D/O.KANNAN, AGED 44 YEARS, HOUSE NO.37/1823(GROUND FLOOR),KOZHITHUMMU NILAM, KARAPARAMBA, PO,KARUVISSERY, KOZHIKODE DIST. 2. PAVITHRAN, S/O.SAMIKUTTY, AGED 46 YEARS, H.NO.37/1823(UPSTAIR PORTION),KOZHITHUMMU NILAM, KARAPARAMBA, PO,KARUVISSERY, KOZHIKODE DIST. BY ADV. SRI.AVM.SALAHUDDEEN RESPONDENT(S): --------------- 1. THE SOUTH INDIAN BANK, MAIN BRANCH, KOZHIKODE, REP.BY ITS MANAGER, 2. THE AUTHORISED OFFICER, SOUTH INDIAN BANK, MAIN BRANCH, KOZHIKODE 3. BOBAN ANTONY, S/O.K.D.ANTONY, JAWAHAR COLONY, KASABA VILLAGE, KOZHIKODE TALUK. 4. SOPHIA BOBAN,W/O.BOBAN ANTONY JAWAHAR COLONY, KASABA VILLAGE, KOZHIKODE TALUK. ADV. SRI.GEORGE VARGHESE,SC,SOUTH INDIAN BANK FOR R1 & 2 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 15/09/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: C.K.ABDUL REHIM, J. ------------------------------ W.P.(C).No.25599 OF 2009 ------------------------------ Dated this the 15th day of September, 2009 J U D G M E N T ---------------------- 1. Petitioners are mortgagees of a property belonging to respondents 3 and 4, upon which an equitable mortgage was created by respondents 3 and 4 in favour of the 1st respondent Bank, in order to secure a housing loan availed by them. Repayment in the loan account was defaulted by respondents 3 and 4 and consequently 1st respondent Bank had initiated proceedings under the provisions of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act 2002 (SARFAESI Act) against the said property which is the secured assets. It is submitted by the petitioners that they are ready and willing to pay off the entire amount due under the loan account, provided the Bank is prepared to transfer title of the property in favour of them. Hence they seek directions in this regard from this Court. 2. Heard learned standing counsel appearing for respondents 1 and 2. It is submitted that the arrears in the loan account as on date is about Rs.7.5 lakhs and the Bank is now W.P.(C).25599/09 2 proceeding for taking over possession of the property and to sell it in public auction. It is submitted that the Bank is not in a position to transfer title of the property in favour of the petitioners because the owners of the secured assets, who had created equitable mortgage in favour of the Bank, alone are entitled to get release of the title deeds. It is further submitted that only through a private sale effected by the Bank in favour of the petitioners, the title can be conferred upon the petitioners. The standing counsel pointed out the provisions contained in Rule 8(5) of the SARFAESI (enforcement) Rules, which enables the Bank to have private sale of the secured assets. But the said provision permits private sale only with consent of the defaulters/loanees. 3. Under the above circumstances the writ petition is disposed of directing the 2nd respondent who is the authorised officer to explore possibilities for effecting private sale of the secured assets in favour of the petitioners, with the intervention of respondents 3 and 4. In this regard a hearing of all the parties shall be convened and the chances in this regard shall be ascertained. Public auction of the secured assets may not be resorted to unless it is found that effecting private sale in favour of the petitioners is totally unworkable. Till a decision is taken in this matter further proceedings for dispossession of the W.P.(C).25599/09 3 petitioners from the property shall be kept in abeyance. The decision in this regard may be taken as early as possible, at any rate within a period of two months from the date of receipt of a copy of this Judgment. C.K.ABDUL REHIM, JUDGE. okb