IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM WEDNESDAY, THE 29TH JUNE 2011 / 8TH ASHADHA 1933 WP(C).No. 17448 of 2011(E) -------------------------- CMP.1108/2011 of C.J.M.,KOZHIKODE .................... PETITIONER:- ------------------ A.JANAKI, W/O.VASANTHA KUMAR MENON, AGED 60, SOPANAM, MELUMUNDI PARAMBA, NEAR STATE BANK OF INDIA COLONY ROAD, KUTHIRAVATTOM P.O., KOZHIKODE. BY ADV. SRI.VICTOR ANTONY NOONE DR.V.N.SANKARJEE RESPONDENT:- ------------------- THE CHIEF MANAGER (AUTHORISED OFFICER), BANK OF BARODA, KOZHIKODE BRANCH, P.B.NO.14, CITY TOWERS, MAVOOR ROAD, KOZHIKODE-673004. BY STANDING COUNSEL SRI.DEVAN RAMACHANDRAN. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 29/06/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 17448 of 2011(E) APPENDIX PETITIONER'S EXHIBITS:- P1: COPY OF THE DEMAND NOTICE DATED 24.1.2011 ISSUED BY THE RESPONDENT. P2: COPY OF THE LETTER DATED 22.2.2011 ISSUED BY RESPONDENT. P3: COPY OF THE IMPUGNED NOTICE DATED 21.6.2011 ISSUED BY THE ADVOCATE COMMISSIONER APPOINTED BY THE CJM, COURT, KOZHIKODE IN CMP.NO.1108/2011. RESPONDENT'S EXHIBITS:- NIL. ( TRUE COPY ) PA TO JUDGE. Kvs/- C.K.ABDUL REHIM, J. = = = = = = = = = = = = = = WP(C).No.17448 of 2011-E. = = = = = = = = = = = = = = Dated this the 29th June, 2011. J U D G M E N T Petitioner stood as guarantor for a loan availed by her daughter from the respondent Bank for business purposes. Immovable property belonging to the petitioner was mortgaged for securing the loan. Consequent to default committed in repayment of the loan, the respondent Bank had initiated proceedings under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI Act). The immovable property was proceeded against, by invoking Section 14(1) of the Act, by approaching the Chief Judicial Magistrate Court, Kozhikode. By Ext.P1 the Advocate Commissioner appointed by the Chief Judicial Magistrate Court had required the petitioner to hand over possession of the property. 2. It is contended by the petitioner that the coercive WP(C).No.17448/2011-E. 2 steps were pursued without acceding to the request made to permit to clear payment of the amounts remaining over due, on the basis of an offer made to pay off the liability stipulated in terms of the loan agreement in future, without any default. 3. Heard; Standing Counsel appearing for the respondent Bank. It is submitted that the credit facility in question is an over draft facility, the term of which stand expired, and due to the default the facility remains recalled by the respondent Bank. Under such circumstance, there is no question of permitting payment in instalments as sought for by the petitioner, is the contention. 4. Considering the alternative remedy provided under Section 17(1) of the SARFAESI Act, it may not be possible for this court to interdict with the proceedings now being pursued. However, learned counsel for the petitioner made an appeal to this court to permit payment of the entire amounts due in a phased manner within a reasonable WP(C).No.17448/2011-E. 3 time, on the basis of an undertaking that neither the petitioner nor the borrower is not intending to pursue any challenge against the proceedings and that they are relinquishing rights if any available before the statutory forum. 5. Even though interference on merit is not called for, I am of the view that the petitioner can be permitted to pay off the account in a phased manner, in view of the relinquishments made in order to save the property from being sold. 6. Accordingly, the writ petitioner is disposed of directing the respondents to keep in abeyance all further coercive steps for dispossession and sale of the property subject to condition of the petitioner remitting the entire amount along with interest and expenses if any due, in 6 (six) equal monthly instalments, falling due on or before 15.7.2011 and on or before the 15th of the succeeding months. WP(C).No.17448/2011-E. 4 7. It is made clear that on the event of default in complying with the conditions stipulated as above, the respondents will be free to proceed with further steps on the basis of the notices already issued. It is also made clear that the above relief is granted subject to condition that the petitioner is precluded from raising any subsequent challenges against the proceedings. C.K.ABDUL REHIM, (Judge) Kvs/-