IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN FRIDAY, THE 26TH SEPTEMBER 2008 / 4TH ASWINA 1930 WP(C).No. 26034 of 2008(Y) -------------------------- PETITIONER(S): --------------- 1. C.V.VENUGOPAL NAIR, S/O.VASUDEVA PILLAI, AGED 58 YEARS, CHITTEZHAM HOUSE, MANNANAM, ATHIRAMPUZHA VILLAGE, KOTTAYAM DISTRICT. 2. MRS.LALITHA VENUGOPAL, W/O.VENUGOPAL, AGED 53 YEARS, -DO-. BY ADV. SRI.A.MOHAMED MUSTAQUE SRI.KAUSER EDAPPAGATH RESPONDENT(S): --------------- 1. THE HOUSING DEVELOPMENT FINANCE CORPORATION LTD., REGISTERED OFFICE AT RAMAN HOUSE 4TH FLOOR 69 BACK BAY RECLAMATION, BOMBAY-400020 BRANCH AT H.D.F.C. HOUSE, RAVIPURAM JUNCTION, COCHIN 682015. 2. THE AUTHORIZED OFFICER, SARFAESI ACT, HDFC, HDFC HOUSE, POST BOX NO.1667, RAVIPURAM JUNCTION, M.G.ROAD, KOCHI-682 015. ADV. SRI.K.K.CHANDRAN PILLAI, SC, HDFC FOR R1-2 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 26/09/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOTTATHIL B.RADHAKRISHNAN, J. ------------------------------------------- W.P(C).No.26034 OF 2008 ------------------------------------------- Dated this the 26th day of September, 2008 JUDGMENT Petitioners availed a loan from the first respondent and defaulted in repayment. That led to Ext.P1 judgment and Ext.P2 decree on 27.3.2007, whereby, the rate of future interest granted is only at 6% per annum. Execution proceedings were taken out and while that matter was pending, the bank initiated proceedings under the SARFAESI Act. Though the learned counsel for the petitioner pointed out that it would be unjust to have parallel proceedings, the proceedings under the SARFAESI Act are, in no manner, hit by the execution proceedings in the civil court. Not only that, the presence of a decree gives assurance to other courts and authorities that there could be no legitimate dispute surviving Ext.P2, on the question of the total amounts due for recovery. In this context, it is worthwhile to note the submissions made on behalf of the first respondent that what is put for recovery under the SARFAESI Act is only the amount covered by Ext.P2 decree. Therefore, there is really no WPC.26034/08 Page numbers room to interfere with that proceedings. The first petitioner has sworn to an affidavit on 23.9.2008 giving up all contentions, including the right to challenge the action of the respondents under the SARFAESI Act before any other statutory authority. He also seeks a period of six months to wipe off the entire outstandings. Learned counsel for the bank is right in stating that the time as sought for may not be granted since the post decree interest in terms of Exts.P1 and P2 is only at the rate of 6% per annum. In the result, repelling all other contentions and upholding the impugned proceedings under the SARFAESI Act as also recording the submission of the petitioners in giving up their right to challenge all action under the SARFAESI Act before any authority, it is directed that the impugned distress action will stand deferred by a period of four months to enable the petitioners to pay off the entire outstandings in a lump or if the petitioners deposit one half of the amounts within a period of three months from now, the bank will hold back distress action WPC.26034/08 Page numbers for a further period of two months to enable the petitioners to pay off the other half also. All this will be on the further condition that the petitioners deposit an amount of Rupees One Lakh within a period of one month from now and a further amount of Rupees One Lakh within another one month. However, if there is default in remitting amounts as aforesaid, the benefit of this judgment shall stand recalled automatically and distress action shall follow. Sd/- THOTTATHIL B.RADHAKRISHNAN, Judge kkb.