IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON WEDNESDAY, THE 27TH JANUARY 2010 / 7TH MAGHA 1931 WP(C).No. 36483 of 2009(E) -------------------------------------- PETITIONER(S): ---------------------- 1. MR.MOHIND G.SAMUEL, CHUNDOTHUVILLA, PRRA-64, MEDICAL COLLEGE P.O., THIRUVANANTHAPURAM. 2. MRS. SUSY MOHIND, CHUNDOTHUVILLA, PRRA-64, MEDICAL COLLEGE P.O., THIRUVANANTHAPURAM. BY ADV. MR.PRADEESH CHACKO, MR.PAUL K.VARGHESE. RESPONDENT(S): ------------------------- 1. INDIAN OVERSEAS BANK, PATTOM BRANCH, MEDICAL COLLEGE ROAD, THIRUVANANTHAPURAM, REPRESENTED BY ITS BRANCH MANAGER. 2. AUTHORIZED OFFICER, INDIAN OVERSEAS BANK, PATTOM BRANCH, MEDICAL COLLEGE ROAD, THIRUVANANTHAPURAM. R1 & R2 BY ADV. MR.P.B.SURESH KUMAR. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 27/01/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs. P.R. RAMACHANDRA MENON, J - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No.36483 of 2009 - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 27th day of January, 2010 J U D G M E N T The petitioner has approached this Court challenging the steps taken by the respondent bank for realisation of the amount due from the petitioner invoking the provisions under the SARFAESI Act. The case of the petitioner is that the default was not wilful or due to any deliberate negligence, but for some unforeseen circumstances in view the sudden down fall in the business. Despite the adverse circumstances, it is stated that the petitioner has taken earnest efforts to clear the entire liability and accordingly, various payments have been effected to the different loans at different points of time and also in compliance with the directions issued by this Court, while intercepting the coercive steps as per the interim orders. 2. The first respondent had filed a statement, stating W.P.(C) No.36483 of 2009 -2- that the amount paid by the petitioner at different points of time have been given credit to and the appropriation has been made as against the liability under different loan transactions. It is also brought to the notice of this Court that, besides the three 'housing loans' availed by the petitioner, there were three 'business loans' as well and that the proceedings were being pursued by the bank for realisation of the amount due under all these loan transactions. 3. The learned counsel for the first respondent submits with reference to the contents of the statement that, after giving credit to the amount paid under the various loan transactions, a sum of about Rs.15.50 lakhs is outstanding under the 'housing loans', while a further sum of about Rs.10.80 lakhs is outstanding under the 'business loan accounts' as on 31/12/2009. It is further stated that, by virtue of the payments effected by the petitioner, the 'over due' amount in the housing loan accounts has been W.P.(C) No.36483 of 2009 -3- liquidated. It is however added in paragraph 6 that the regularisation of the 'business loan' cannot be considered as the petitioner does not have any business as on date and further that the regularisation of the 'housing loan' can be considered, once the petitioner clears the entire outstanding amount in the business loans completely. 4. After considering the facts and circumstances and in view of the admitted fact that the entire 'over due' amounts under the 'housing loans' have been satisfied by the petitioner, the further stipulation made by the respondent to clear the business loans first, as a pre- condition to have the 'housing loans' regularised, does not appear to be correct or proper. True, the loan facility provided by the bank to the petitioner is on the basis of a specific contract. However, the respondent bank, which is very much in the public sector, cannot impose unreasonable restrictions; particularly with regard to the liability of the persons concerned under the 'housing sector'; which is W.P.(C) No.36483 of 2009 -4- being provided and implemented also in support of the policy of the Government to promote such welfare measures. 5. In the above circumstances, the 'over due' amount under the 'housing loan accounts' having been admittedly cleared by the petitioner, the respondent bank is directed to regularise the 'housing loan' accounts forthwith. 6. With regard to the liability of the petitioner under the three 'business loans', the outstanding amount is only about Rs.10.80 lakhs, with further interest and costs from 1/1/2010. After hearing both the sides, this Court permits the petitioner to clear the said liability by way of '3' equal instalments, the first of which shall be effected on or before the 25th February 2010 and the remaining 2 instalments shall be effected on or before the 25th of the succeeding months. Subject to the above, the recovery proceedings by the respondent bank shall be kept in abeyance for the time being. It is made clear that, if any default is made in W.P.(C) No.36483 of 2009 -5- clearing the liability as above, towards the 'business loans' or if any 2 consecutive defaults are made with regard to the regular EMIs to be paid under the 'housing loans', the respondent bank will be at liberty to proceed with further steps for realisation of the entire amount in a lump sum, by pursuing such steps from the stage where it stands now. The writ petition is disposed of as above. P.R. RAMACHANDRA MENON (JUDGE) nl