IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM TUESDAY, THE 7TH DECEMBER 2010 / 16TH AGRAHAYANA 1932 WP(C).No. 28234 of 2010(D) -------------------------- PETITIONER(S): --------------- SINDHU.P.,W/O.P.K.MANIYAN, PAKKALICHIRA,CHAMBAKKULAM PO 688 505, ALAPPUZHA DISTRICT. BY ADV. SRI.S.SANAL KUMAR SMT.BHAVANA VELAYUDHAN RESPONDENT(S): --------------- 1. THE ICICI BANK, REPRESENTED BY ITS MANGER, ALAPPUZHA 688 001. 2. THE AUTHORIZED OFFICER, KOTAK MAHINDRA BANK LIMITED,ALAPPUZHA 688 001. ADV. SRI.KKM.SHERIF FOR R1 SRI.LAL K.JOSEPH FOR R1 SRI.A.A.ZIYAD RAHMAN FOR R1 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 07/12/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: C.K.ABDUL REHIM, J --------------------------------------- W.P(C) No.28234 of 2010-D ---------------------------------------- Dated this the 7th day of December, 2010. J U D G M E N T The petitioner had availed a housing loan from the 1st respondent Bank during the year 2004, to the tune of Rs.3,19,000/-. As per terms of the loan agreement, the amount has to be repaid in 175 equal monthly instalments. According to the petitioner she was remitting the monthly instalments promptly for quite a long time. In the meanwhile, the petitioner received Ext.P3 notice issued by the 2nd respondent Bank to the effect that the loan in question along with the underlying security was transferred by the 1st respondent Bank in favour of the 2nd respondent and hence requesting the petitioner to settle the account immediately. Subsequently, the 2nd respondent initiated proceedings under the provisions of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI Act) and the immovable property, which is the secured asset was proceeded against, on issuing Ext.P4 notice as contemplated under Rule 8(1) of the Security Interest (enforcement) Rules, 2002. The petitioner is challenging the proceedings initiated under the SARFAESI Act W.P(C) No.28234 of 2010-D 2 mainly on the ground that the assignment of the debt along with the underlying security from the 1st respondent Bank to the 2nd respondent Bank is illegal and violative of the provisions contained in the SARFAESI Act. 2. The legal question involved stands now settled through a direct decision of the Hon'ble Supreme Court in ICICI Bank V Official Liquidator, APS Star Industries and others (CDJ 2010 SC 956). Therefore I am of the view that the challenge raised against the proceedings initiated under the SARFAESI Act is not maintainable and hence the writ petition is liable to be dismissed. 3. However, learned counsel for the petitioner made an appeal before this Court to permit payment of the balance outstanding in a phased manner within a reasonable time, on the basis that the petitioner is not intending to pursue any statutory remedy and that the petitioner is relinquishing all challenges against the proceedings initiated under the SARFAESI Act. 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.28234 of 2010-D 3 4. Accordingly, the writ petition is disposed of directing the respondents to keep in abeyance all further coercive steps pursuant to the notice issued under Ext.P4, provided the petitioner remits the entire balance outstanding along with interest and expenses if any due in 6 (six) equal monthly instalments falling due on or before 31.12.2010 and on or before the last day of succeeding months. 5. 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 on the basis of the notices already issued. It is further 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