IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM MONDAY, THE 6TH DECEMBER 2010 / 15TH AGRAHAYANA 1932 WP(C).No. 34806 of 2010(A) -------------------------- PETITIONER(S): --------------- 1. B.SAJEEVAN,AGED 49 YEARS, S/O.BALAKRISHNA PILLAI,CHITRALAYAM,THRIKOVILVATTOM BHARATHANOOR.P.O,TRIVANDRUM. 2. PRASANNAKUMARY,W/O.B.SAJEEVAN, DO--- DO--- DO-- BY ADV. SRI.T.R.ASWAS RESPONDENT(S): 1 ---------------- 1. THE INDIAN OVERSEAS BANK,BHARATHANNOOR, TRIVANDRUM-689510, REP. BY BRANCH MANAGER 2. THE REGIONAL MANAGER,THE INDIAN OVERSEAS BANK,TRIVANDRUM-689501. ADV. SRI.P.B.SURESH KUMAR, SC,I.O.BANK FOR R1,2 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 06/12/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: C.K.ABDUL REHIM, J --------------------------------------- W.P(C) No.34806 of 2010-A ---------------------------------------- Dated this the 6th day of December, 2010. J U D G M E N T This writ petition is filed aggrieved by Ext.P3 notice issued under Rule 8(1) and (2) of the Security Interest (Enforcement) Rules 2002, through which intimation was given regarding the coercive steps taken, as contemplated under Section 13(4) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI Act). 2. The issue pertains to a housing loan availed by the petitioners from the respondent Bank, in the year 2003. Consequent to default committed in repayment, steps were initiated against the immovable property, which is the secured asset. Ext.P3 notice was issued with respect to taking over possession of the secured asset. According to the petitioners, the coercive steps are being pursued without accepting their request to permit regularisation of the loan account. Hence the petitioners are seeking W.P(C) No.34806 of 2010-A 2 directions from this Court. 3. Considering the effective alternative remedy provided under the statute, it is not just and proper for this Court to restrain the proceedings, invoking jurisdiction under Article 226 of the Constitution of India. This is especially because of the directions contained in the decision of the Hon'ble Supreme Court in United Bank of India V Sathyawati Tondon & others (2010(8) SCC 110). 4. Learned counsel for the respondents submitted that the petitioners have not cared to effect regular repayments of the monthly instalments and the loan account was remaining defaulted for a quite long time. It is submitted that the petitioners are not taking any earnest efforts to clear the arrears, inspite of repeated demands. 5. Having confronted with the above situation, learned counsel for the petitioners submitted that the petitioners are not intending to pursue any statutory remedies and that they are relinquishing all challenges W.P(C) No.34806 of 2010-A 3 against the proceedings initiated. On the other hand, limited prayer of the petitioners is only to permit to regularise the account, on the basis of an offer that the defaulted amounts will be paid within a short period. 6. Pursuant to an interim order issued by this Court, the petitioners had already remitted a sum of Rs.50,000/-. Eventhough interference on merits is not desirable, I am of the view that the petitioners can be permitted to regularise the account by paying the defaulted arrears within a short period. 7. Accordingly, the writ petition is disposed of directing the respondents to keep in abeyance all further coercive steps initiated pursuant to Ext.P3 notice, subject to condition of the petitioners remitting the entire amounts in default (defaulted monthly instalments along with interest and expenses if any due) in 2 (two) equal monthly instalments, falling due on or before 31.12.2010 and on or before 31.1.2011. The petitioners shall also make payment of the regular instalments due for the respective months W.P(C) No.34806 of 2010-A 4 along with such payments. 8. If payment of defaulted amounts is cleared as per the stipulations contained above, the respondents shall permit the petitioner to continue payment of the future monthly instalments in terms of the original schedule of repayment. 9. It is made clear that on the event of default in payment of any one of the instalments as stipulated or any future monthly instalments, the respondents will be free to proceed with further steps. It is further made clear that the above relief is granted subject to condition that the petitioners are precluded from raising any subsequent challenge against such proceedings. C.K.ABDUL REHIM JUDGE ab