IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM TUESDAY, THE 21ST JUNE 2011 / 31ST JYAISHTA 1933 WP(C).No. 7796 of 2011(Y) ------------------------- CMP.988/2011 of C.J.M., ALAPPUZHA .................... PETITIONER(S): --------------- JOE CHERIAN , AGED 33 YEARS, S/O.DR.CHERIAN JOSEPH, RESIDING AT NADUVILEZHATHU HOUSE, CMC II, CHERTHALA PO, ALAPPUZHA-688 524. BY ADV. SRI.C.V.MANUVILSAN SRI.P.G.SURESH SMT.K.VIDYA SRI.RAJAN VISHNURAJ RESPONDENT(S): --------------- 1. THE STATE BANK OF INDIA, CHERTHALA BRANCH, GANDHI BAZAR SHOPPING COMPLEX, CHERTHALA PO, ALAPPUZHA-688 524. REPRESENTED BY ITS AUTHORISED OFFICER. 2. THE SUPERINTENDENT OF POLICE, ALAPPUZHA-688 001. 3. ADV.DARSAN V SOMANATH, ADVOCATE COMMISSIONER IN CMP NO.988/2011, CHIEF JUDICIAL MAGISTRATE COURT, ALAPPUZHA, ADVOCATE, C/O.PG THAMPI ASSOCIATES, RAJASILPI, ALAPPUZHA-688 001. BY ADV. SRI.P.V.SURENDRANATH FOR R1 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 21/06/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 7796 of 2011(Y) APPENDIX PETITIONER'S EXHIBITS :- P1 : COPY OF THE PROPERTY SITUATED IN SY.No.208/8 CHERTHALA NORTH VILLAGE OF CHERTHALA TALUK OF ALAPPUZHA DISTRICT P2 : COPY OF THE COMMUNICATION ISSUED BY THE BRANCH MANAGER OF 1st RESPONDENT BANK DATED 24.2.2007 P3 : COPY OF THE RECEIPTS EVIDENCING THE PAYMENT OF Rs.5 LAKHS TOWARDS THE LOAN ACCOUNT P4 : COPY OF THE NOTICE ISSUED BY THE 3rd RESPONDENT TO THE PETITIONER, IN C.M.P.No.988/2011 BY THE LEARNED CHM, ALAPPUZHA RESPONDENTS' EXHIBITS :- NIL //TRUE COPY// P.A.TO JUDGE ami/ C.K.ABDUL REHIM, J. ------------------------------- W.P.(C).No.7796 of 2011 ------------------------------- Dated this the 21st day of June, 2011. J U D G M E N T Consequent to default committed by the petitioner in repaying amounts due under a cash credit facility and a term loan availed from the 1st respondent Bank, proceedings under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI Act) was initiated. The immovable property, which is a secured asset, was proceeded against by invoking section 14(1). The Advocate Commissioner appointed by the Chief Judicial Magistrate Court had issued Ext.P4 notice, requiring the petitioner to hand over possession of the property in question. 2. According to the petitioner, the coercive steps were pursued without considering the request made by the petitioner to permit payment of the amounts due in a phased manner, within a reasonable time, and without considering 2 W.P.(C).No.7796 of 2011 the request for waiver of interest/penal interest and expenses to the possible extent. 3. When the writ petition came up for consideration, this Court had stayed the coercive steps for dispossession of the property, subject to condition of the petitioner remitting a sum of Rs.4 lakhs within 3 weeks from 14.3.2011. Subsequently, the interim order was extended by directing payment of a further sum of Rs.3 lakhs in two equal instalments on or before 30.4.2011 and 31.5.2011. It is reported that the petitioner had complied with the conditions and made deposit of a total sum of Rs.7 lakhs, after filing of the writ petition. It is also stated that certain amounts were paid even prior to the date of filing of this writ petition, as evident from Ext.P3. 4. In the counter affidavit filed on behalf of the 1st respondent it is mentioned that, the loan accounts are in chronic default and steps under the SARFAESI Act was proceeded against after complying with all formalities due. It is stated that, the total dues in the term loan account is a 3 W.P.(C).No.7796 of 2011 sum of Rs.2,77,360/- and in the cash credit facility account is Rs.3,97,791/-. After the remittances effected, the total arrears will come to around Rs.6,75,151/- as on 31.5.2011, along with future interest. Since the loan accounts are in serious default, the respondent Bank is not favouring in permitting any extension of the period for repayment. 5. Considering availability of the effective statutory remedy provided under Section 17(1) of the SARFAESI Act, it may not be justified on the part of this Court to interdict with the proceedings, that too at the stage of pendency of the matter before the CJM Court. However, learned counsel for the petitioner made an appeal to this Court that the petitioner is ready and willing to pay off the entire liability in a phased manner, subject to waiver of amounts if any permitted by the 1st respondent Bank. Such a request is made based on an undertaking that, the petitioner is relinquishing all challenges against the proceedings and also relinquishing rights if any available to invoke statutory remedy. 4 W.P.(C).No.7796 of 2011 6. Eventhough interference on merits is not warranted, I am of the view that, the limited relief sought for can be permitted in view of the relinquishments made. Accordingly, the writ petition 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 balance along with interest and expenses if any due, in 6 (six) equal monthly instalments on or before 15.7.2011 and on or before the 15th day of succeeding months. 7. It is made clear that the petitioner will be at liberty to approach the 1st respondent Bank, seeking waiver of interest/penal interest and expenses to the possible extent. The direction issued as above will not stand in the way of the 1st respondent considering such request favourably and taking appropriate decision. 8. It is made clear that on the event of default in payment of any one of the instalments as stipulated above, the respondents will be free to proceed with further steps, 5 W.P.(C).No.7796 of 2011 on the basis of the notice already issued and on such event the petitioner will be precluded from raising any subsequent challenge. C.K.ABDUL REHIM, Judge ami/