IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM MONDAY, THE 26TH OCTOBER 2009 / 4TH KARTHIKA 1931 WP(C).No. 29817 of 2009(V) -------------------------- PETITIONER(S): --------------- R.ANIL KUMAR, S/O.RAMAKRISHNAN NAIR, SREE NILAYAM, MALAKUNNAM P.O., CHANGANASSERY. BY ADV. SRI.P.V.JYOTHI PRASAD RESPONDENT(S): --------------- 1. STATE BANK OF TRAVANCORE, REP.BY CHIEF MANAGER, BALAGI BUILDINGS, TRIPUNITHURA, ERNAKULAM-682 301. 2. M/S.TRINITY ASSOCIATES, XI/517-C, KRISHNAPRIYA, MALEKADU ROAD, UDAYAMPEROOR 682 307. ADV. SRI.SANTHOSH MATHEW, S.C. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 26/10/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: C.K.ABDUL REHIM, J. ------------------------------ W.P.(C).No.29817 OF 2009 ------------------------------ Dated this the 26th day of October, 2009 J U D G M E N T ---------------------- 1. Petitioner is a surety to a loan transaction of the 2nd respondent, entered with the 1st respondent Bank. Immovable property belonging to the petitioner is mortgaged for securing the loan. Since the 2nd respondent had defaulted payment of the loan amount the 1st respondent had initiated proceedings under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI Act) against the secured asset, which is the immovable property belonging to the petitioner. Notice under Section 13(2) of the SARFAESI Act was issued on 5.2.2007. Subsequently notice under Section 13(4) was issued on 19.5.2009. Now the property in question is proclaimed for sale as evidenced by Ext.P1 notice dt.18.9.09. Sale is scheduled to be held on 27.10.09. 2. Contention of the petitioner is that he is ready and willing to pay the entire amounts outstanding in the loan account, within a reasonable time in installments. But his apprehension is that the respondent Bank may proceed against the property for realisation of another loan availed by the 2nd respondent from another branch of the 1st respondent Bank, eventhough the property in question is not mortgaged with W.P.(C).29817/09-D 2 respect to the said loan transaction. 3. Learned standing counsel appearing on behalf of the 1st respondent, on the basis of instructions, submitted that the property in question is not a secured asset with respect to the loan transaction of the 2nd respondent with another branch. But at the same time the petitioner is a co-obligant in that transaction and the Bank had already obtained a decree with respect to arrears in the said loan account, which is availed from Udayamperoor branch of the 1st respondent Bank, in O.S.No:258/08 from the Sub Court, Ernakulam. It is further submitted that the property belonging to the petitioner is under attachment as per order issued from the civil court, in that case. However, it is submitted that since the property in question is not a secured asset with respect to the other loan, there is no impediments in returning the title deed to the petitioner on the petitioner remitting the entire amount, due in the present loan. But the Bank is not favouring in permitting the petitioner to pay off the liability in easy installments. 4. Having considered facts and circumstances of the case and contentions on both sides I am of the opinion that the apprehension expressed by the petitioner stands cleared through the statement made on behalf of the 1st respondent. Eventhough interference on merit with respect to the SARFAESI proceedings is not at all desirable, I am of the view that some indulgence can W.P.(C).29817/09-D 3 be shown in the matter of permitting the petitioner to pay off the entire liability within a reasonable time. 5. Accordingly the writ petition is disposed of directing the petitioner to make payment of an amount of Rs.50,000/- (Rupees Fifty thousand only) on or before 10.11.2009. The 1st respondent is directed not to confirm the bid, if any received in the auction proposed to be held on 27.10.2009 till such date. On payment of the above said amount the 1st respondent shall issue a balance statement to the petitioner after crediting all such payments and after considering waiver of interest/default interest if any possible. The petitioner shall continue to pay the balance so intimated in 4 (four) equal monthly installments starting from 30.11.09 and on or before the last day of the succeeding months. 6. It is made clear that on the event of default in payment of any of the amounts as stipulated above the respondent Bank will be free to take further steps pursuant to the notice already issued and on such event the petitioner will be precluded from raising any further challenge before this court or before any other forum. C.K.ABDUL REHIM, JUDGE. okb