IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON THURSDAY, THE 2ND SEPTEMBER 2010 / 11TH BHADRA 1932 RP.No. 776 of 2010(W) ----------------------------- AGAINST THE JUDGEMENT/ORDER IN WPC.21186/2010 DATED 15/07/2010 ................................................................................................................................ PETITIONERS / RESPONDENTS 1 AND 2 --------------------------------------------------------- 1. THE SOUTH INDIAN BANK LTD., REGIONAL OFFICE, KAKKANATTU APARTMENTS, ST.PETERS JUNCTION, PATHANAMTHITTA-689 645, REPRESENTED BY ITS CHIEF MANAGER. 2. THE CHIEF MANAGER (AUTHORISED OFFICER), SOUTH INDIAN BANK LTD., KAKKANATTU APARTMENTS, ST.PETERS JUNCTION, PATHANAMTHITTA-689 645. BY ADV. SRI.K.K.JOHN RESPONDENT / PETITIONER AND 3RD RESPONDENT --------------------------------------------------------------------------- 1. AMBILY.T.V, THUNNIMOOTTIL, AMBILY BHAVAN, PARAKKONAM, THOTTUPURAM, PATHANAMTHITTA-689 645. 2. ANILKUMAR.P., THUNNIMOOTTIL, AMBILY BHAVAN, PARAKKONAM, THOTTUPURAM, PATHANAMTHITTA-689 645. THIS REVIEW PETITION HAVING COME UP FOR ADMISSION ON 02/09/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Mn P.R.RAMACHANDRA MENON, J. --------------------------- R.P. No. 776 OF 2010 IN W.P.(C) No. 21186 OF 2010 -------------------------- Dated this the 2nd day of September, 2010 O R D E R The petitioner bank has filed this petition seeking to review of the judgment passed by this Court in W.P.(C) No.21186 of 2010 on 15th July, 2010 whereby the 'Housing Loan' account of the petitioner was ordered to be regularised, subject to the condition that the petitioner cleared the 'overdue' amount as specified and continued to effect regular EMIs without fail. 2. The main ground raised in the writ petition is that there was an earlier decree as borne by 'Annexure A' (Ex-parte decree) in O.S. No.34 of 2009 filed by the bank before the Sub Court, Pathanamthitta whereby the rights and liabilities between the parties have been settled and this being the position, there could not have been any direction to have the loan account regularised on clearing the overdue amount, permitting the petitioner/borrower to continue to effect the payment by way of instalments as originally stipulated. 3. The learned counsel for the bank submits that the anxiety of the review petitioner bank is more with regard to the effect of the decree and that it may not be necessitated for the petitioner bank to file any fresh suit in this regard. This Court finds that the apprehension is totally RP No.776/2010 2 unfounded for more reasons than one. 4. The non-mentioning of the decree or as to the civil suit in the writ petition filed by the petitioner is not fatal, in so far as the proceedings taken by the bank under challenge in the W.P.(C) were in respect of the steps under the SARFAESI Act; which had absolutely no connection with the decree. In other words, the bank was/is at liberty to pursue the matter by filing necessary 'execution petition' to have the decree executed. The suit was filed, to avoid the bar of limitation, as pointed out and this being the position, the bank is at liberty to get the decree executed within 12 years as prescribed. However by virtue of the law declared by the Apex Court on the point, it is very much open for the bank to pursue either of the different remedies available and pendency of a civil suit is not a bar for initiation of the proceedings under the SARFAESI Act. It was in the said circumstances, that the bank thought it fit to pursue the remedy by way of SARFAESI Act, even after securing a decree and it was accordingly, that Ext.P1 notice was issued under Section 13(2) of the SARFAESI Act, followed by Ext.P4 application preferred before the learned Chief Judicial Magistrate, Pathanamthitta under Section 14 of the Act. Nowhere in Ext.P4 application filed under Section 14 of the Act, has the bank mentioned that the bank has already obtained a decree, obviously for the reason that it is entirely a different cause of action. Applying the same RP No.776/2010 3 logic and reasoning, the writ petitioner cannot be found fault with for having not mentioned the same in the writ petition, while seeking for immediate interference, in virtue of the coercive proceedings under the SARFAESI Act. That apart, the cause of action under the SARFAESI Act stands on a different footing and merely by issuance of a notice under Section 13(2) or even on communicating the outcome of the representation preferred by the borrower pursuant to the explanation offered under Section 13(3A), the cause of action will not arise; which will be available to the party concerned only on taking steps under Section 13(4) and never before. 5. Yet another aspect to be considered is whether the action pursued by the bank, particularly to deny the benefit of regularisation of the Housing Loan to the petitioner, even on satisfying the overdue amount, referring to the decree, is correct or not. In view of the Circular guidelines dated 24.4.2008 issued by the Reserve Bank of India as contained in 2008 (2) KLT Central Statutes 25 and also the law declared by the Apex Court in the decision reported in I.C.I.C.I Bank v. Shanti Devi Sharma (2008 (2) KLT 852) holding that all scheduled commercial banks (as specified) are liable to follow the guidelines of the RBI. This being the position, there is a public duty on the bank and as such, the contention raised by the bank that no Writ will lie against the bank is devoid of any merit or bonafides. Considering the fact that the loan facility extended by the bank is in the RP No.776/2010 4 'Housing sector', which is a measure of positive step with regard to the concept of a 'Welfare Stare', the bank has also a social obligation to give effect to the policy of the State/Union and the RBI. In the above circumstances, this Court does not find any 'error apparent on the face of the record'. No interference is called for. The Review Petition is accordingly dismissed. However, it is made clear that 'Annexure A' 'ex-parte decree' will stand in fact, if not got set aside or interfered in the Appeal, to be acted upon, if and when necessitated, in accordance with law. The liability of the writ petitioner to have the loan account closed in the due course, also will take in the liability to satisfy the cost incurred by the bank as allowed in the decree, as well. P.R.RAMACHANDRA MENON, (JUDGE) vps RP No.776/2010 5 RP No.776/2010 6