IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM TUESDAY, THE 22ND SEPTEMBER 2009 / 31ST BHADRA 1931 WP(C).No. 26028 of 2009(W) -------------------------- PETITIONER(S): --------------- JOSEPH AUGUSTINE, S/O. E.J.AUGUSTINE, EDAKKARA HOUSE, POST PARAVANNA, MALAPPURAM DIST. BY ADV. SRI.C.M.MOHAMMED IQUABAL RESPONDENT(S): --------------- 1. THE SOUTH INDIAN BANK REGIONAL OFFICE, P.B.NO.933, CHAKKARATHUKULAM, POST WEST HILL, KOZHIKODE, REP. BY THE GENERAL MANAGER. 2. THE AUTHORISED OFFICER, SOUTH INDIAN BANK LTD., KOZHIKODE REGION CALICUT DIST. 3. THE MANAGER, SOUTH INDIAN BANK PUTHANNATHINI BRNCH, POST PUTHANATHANI, MALAPPURAM DIST. 4. JOLLY KAKKASSERY, MANAGER PARTNER, M/S. KAKKASSERY AUTOS, NADUVILANGADY.P.O. TIRUR MALAPPURAM DIST. 5. VINCENT T.K. S/O. T.P.KURIAPPAN, BLUE NILE COTTAGE, PARAPPANAGADI ROAD, TIRUR POST, MALAPPURAM DIST. 6. LUCY.P.J.,W/O. VINCENT.T.K. BLUE NILE COTTAGE, PARAPPANANGADI ROAD, TIRUR POST, MALAPPURAM DIST. 7. A.J.SUSEELA, W/O. LATE K.O THOMAS, KKKASSERY HOUSE, MATTOM THRISSUR DIST. P.O.MATTOM. (....2) WP(C).26028/09 (2) 8. JOSHY THOMAS, S/O. LATE K.O.THOMAS KAKKASSERY HOUSE MATTOM, THRISSUR DIST., MATTOM .P.O. 9. JOGY THOMAS, S/O. LATE.K.O.THOMAS KAKKASERY HOUSE MATTOM, THRISSUR DIST. MATTOM .P.O. 10. JOBY THOMAS, S/O. LATE K.O.THOMAS KAKKASSERY HOUSE, MATTOM, THRISSUR DIST. P.O.MATTOM. 11. JYOTHI THOMAS, D/O. LATE.K.O.THOMAS, KAKKASERY HOUSE, MATTOM THRISSUR DIST., P.O.MATTOM. 12. JOY THOMAS, S/O. LATE K.O THOMAS, KAKKASSERY HOUSE, MATTOM, THRISSUR DIST. 13. JOHNY AUGUSTINE, S/O. E.J.AUGUSTINE, EDKKARA HOUSE, PIZHAKU P.O., KOTTAYAM DIST. 14. REMYA JOFFY, W/O. LATE JOFFY THOMAS, PUNNEL PARAMBIL NEAR CHURCH, THAZHEKKAD.P.O., THRISSUR DIST. 15. TOMY JOSEPH, (MINOR), REP. BY HIS MOTHER REMYA JOFFY, S/O. LATE JOFFY THOMAS PUNNEL PARAMBIL NEAR CHURCH, THAZHEKKAD.P.O. THRISSUR DIST. 16. JOVITTA, (MINOR), REP. BY HER MOTHER REMYA JOFFY, D/O.LATE JOFFY THOMAS, PUNNEL PARAMBIL NEAR CHURCH, THAZHEKKAD.P.O., THRISSUR DIST. ADV. SRI.GEORGE VARGHESE,SC,SOUTH INDIAN BANK FOR R1-3 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 22/09/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: C.K.ABDUL REHIM, J. ------------------------------ W.P.(C).No.26028 OF 2009 ------------------------------ Dated this the 22nd day of September, 2009 J U D G M E N T ---------------------- 1. Petitioner is the partner of a firm, which had availed three loans from the 3rd respondent Bank, for the purpose of conducting business. The 4th respondent is the Managing Partner of the said firm. The 5th respondent is yet another partner. Properties belonging to the petitioner as well as that of the respondents 4 to 16 were mortgaged in order to secure the loans. Since repayment in the loan accounts were defaulted the Bank initiated proceedings under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act 2002 (SARFAESI Act). Ext.P2 notice under Section 13(2) of the Act was issued with respect to 6 items of properties, which are the secured assets. It is contended that out of the 6 items, item No:6 mentioned in Ext.P2 notice belongs to the petitioner, which is his residential compound. Subsequent to Ext.P2 constructive possession has already been taken over by the Bank through Ext.P3 notice, issued under Rule 8 of the SARFAESI (enforcement) Rules, 2002. Now the respondent Bank had approached the Chief Judicial Magistrate, Manjeri W.P.(C).26028/09 2 under Section 14 of the SARFAESI Act to take over physical possession of the secured assets. 2. Petitioner had submitted Ext.P4 representation before the 3rd respondent Bank requesting to keep in abeyance the proceedings initiated against No:6 in Ext.P2 notice. It is specifically stated that the petitioner is ready and willing to pay market price for the above said item of property and the Bank was requested to release it on private sale. Complaint of the petitioner is that without considering Ext.P4 representation, the Bank is now proceeding with steps for sale of the residential property of the petitioner, along with the other items of secured assets. 3. Heard standing counsel appearing for respondents 1 to 3. It is submitted that the outstanding arrears in the three loan accounts will come about Rs.157 lakhs as on 30.6.2008, along with future interest. It is also pointed out that the petitioner had expressed his willingness to pay off the entire arrears in installments, but so far nothing has been paid. 4. Having considered facts and circumstances of the case I am of the opinion that, it is for the respondent Bank to consider request of the petitioner for having private sale of the said property at prevailing market price, having considered the fact that it is his residential property, without prejudice to legal W.P.(C).26028/09 3 actions to be proceeded against other items of properties. 5. Therefore the respondents 1 to 3 are directed to consider Ext.P4 request before taking over actual possession of property mentioned as item No:6 in Ext.P2 notice, and to take a final decision with respect to effecting private sale of the said property to the petitioner or to any of the nominees of the petitioner. A decision in this regard may be taken as early as possible, after affording a personal hearing to the petitioner. Till such decision is taken all steps against item No:6 property for taking over possession or for sale, shall be kept in abeyance. It is made clear that the above said direction will not in any way preclude the Bank from proceeding with further steps with respect to other items of properties mentioned in the notice. The writ petition is disposed of as above. C.K.ABDUL REHIM, JUDGE. okb