IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM FRIDAY, THE 9TH OCTOBER 2009 / 17TH ASWINA 1931 WP(C).No. 26373 of 2009(N) -------------------------- PETITIONER(S): --------------- C.SHAJI KUMAR, S/O.CHELLAPPAN, AGED 49, TC 3/933, PANAYIL VEEDU, ARAPURAM MUTTADA P.O., THIRUVANANTHAPURAM. BY ADVS. SRI.M.RAMASWAMY PILLAI SRI. P.M.JOSEPH RESPONDENT(S): --------------- 1. UNION OF INDIA, REP. BY THE SECRETARY, BANKING AFFAIRS, NEW DELHI. 2. UNION BANK OF INDIA, REP. BY ITS BRANCH MANAGER, PERURKADA, THIRUVANANTHAPURAM. 3. THE AUTHORIZED OFFICER, UNION BANK OF INDIA, REGIONAL OFFICE, M.G.ROAD, STATUE, THIRUVANANTHAPURAM. 4. R.PREMAKUMAR, PROPRIETOR, M/S.NARAYANA TRADING COMPANY, TC 6/52, KOVILVILAKATHU VEEDU, VATTIYOORKAVU P.O., THIRUVANANTHAPURAM. R1 BY ADDITIONAL SOLICITOR GENERAL SRI. T.P.M. IBRAHIM KHAN R2 & R3 BY ADV. SRI. A.S.P. KURUP, STANDING COUNSEL THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 09/10/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: shg/ C.K. ABDUL REHIM, J - - - - - - - - - - - - - - - - - - - - - - - W.P.(C)No. 26373 of 2009 - - - - - - - - - - - - - - - - - - - - - - - Dated this the 9th day of October, 2009 J U D G M E N T 1. Petitioner is the guarantor to a loan availed by the 4th respondent from the 2nd respondent Bank, to the tune of Rs.17,00,000/-. The 4th respondent had hypothecated stock- in-trade of his business as primary security and immovable property belonging to the petitioner was mortgaged for securing the loan. Since the 4th respondent defaulted regular repayments respondents 1 to 3 initiated proceedings under the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI Act) and notice under Section 13 (2) was issued as evidenced by Ext.P2. Even though petitioner compelled the 4th respondent to make payment of the amount, nothing was paid towards the arrears. According to the petitioner, the Bank failed to take any coercive steps against the 4th respondent. However, in an attempt to save W.P.(C)No. 26373 of 2009 -2- the immovable property, the petitioner is trying to negotiate private sale and to pay off the liability, is the contention. 2. Grievance of the petitioner is that without permitting any reasonable time to find out a probable buyer the 3rd respondent had now approached the Chief Judicial Magistrate Court under Section 14 (1) of the SARFAESI Act and steps are being persued to take over possession of the property belonging to the petitioner, which is the secured asset. Petitioner is seeking directions for permitting him to pay off the entire liability within a reasonable time, and to direct the Bank to keep in abeyance further steps for eviction from the property and from conducting sale of the same, till such time. 3. Heard learned standing counsel appearing for respondents 1 to 3 who on the basis of instructions submitted that the loan is in chronic default and the present arrears will come to more than Rs.20,00,000/-. It is noticed from Ext.P2 that the amount due as on 01.03.2009 is Rs.17,28,624.32/-. Contention of the petitioner is that, W.P.(C)No. 26373 of 2009 -3- whatever be the amount due he is ready and willing to pay off in installments, within a reasonable period. According to counsel for the respondent Bank, considering history of the loan account and especially in view of failure to comply with a promise made by the petitioner before the Chief Judicial Magistrate Court to make payment of some amount, such an offer cannot be accepted. 4. Having considered the contentions on both sides and facts and circumstances of the case, I am of the opinion that some indulgence can be shown in the matter of permitting the petitioner to pay off the entire liability in installments, within a reasonable time. 5. Accordingly the Writ Petition is disposed of directing the petitioner to make payment of a sum of Rs.4,00,000/- on or before 15.11.2009. The respondents 1 to 3 are directed to keep in abeyance further steps pursuant to the notice now issued, till such date. On payment of the said amount, the Bank shall furnish a balance statement to the petitioner, after giving credit to all payments made and W.P.(C)No. 26373 of 2009 -4- after considering waiver of interest or penal interest if any to the possible extent. The petitioner shall continue to pay the entire balance amount as intimated in five (5) equal monthly installments starting from 15th December 2009 and on or before the 15th day of every succeeding months. 6. It is made clear that in case of failure to pay any of the installments, the respondents 1 to 3 will be at liberty to proceed with further steps from the stage at which it is stopped and on such event the petitioner will be precluded from raising any further challenge against the proceedings before this court or before any other forum. C.K. ABDUL REHIM JUDGE shg/