IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON TUESDAY, THE 3RD AUGUST 2010 / 12TH SRAVANA 1932 WP(C).No. 21584 of 2010(W) -------------------------- PETITIONER(S): --------------- OMANA SOMAN, AGED 48 YEARS, W/O. V.N.SOMAN, VALIYAVEETTIL HOUSE, POOVANTHURUTH, KOTTAYAM. BY ADV. SRI.MATHEW ABRAHAM RESPONDENT(S): --------------- 1. THE BRANCH MANAGER, ORIENTAL BANK OF COMMERCE, P.O. KOTTAYAM. 686 001 2. THE AUTHORISED OFFICER, ORIENTAL BANK OF COMMERCE, P.O. KOTTAYAM. 686 001 3. JOHNSON VARKEY, AGED 34 YEARS, S/O. M.J.VARKEY, MANAKKULATHIL EBANESSAR HOUSE, AIMANAM VILLAGE, AIMANAM P.O., KOTTAYAM DISTRICT. 686 011 ADV. SRI.SAJI.P.JOSEPH FOR R1 & 2 SRI.M.P.MADHAVANKUTTY FOR R3 SRI.GOKUL DAS V.V.H. FOR R3 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 03/08/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.R.RAMACHANDRA MENON, J -------------------------------------------- WP(C) NO. 21584 OF 2010 -------------------------------------------- Dated this the 3rd day of August, 2010 JUDGMENT The petitioner stated as a tenant under the land lord, i.e., the 3rd respondent is before this Court challenging the proceedings taken by the respondent Bank under the SARFAESI Act, for taking physical possession of the property in question and to have it sold in public auction, in respect of the amounts due from the 3rd respondent. 2. The learned counsel for the petitioner submits that the petitioner, who is continuing to occupy the premises on the strength of Ext.P1 'lease deed' has already parted with substantial amount, as paid to the 3rd respondent/landlord, with intent to purchase the said property. It is also the case of the petitioner that, the 3rd respondent in fact had availed a loan from the 1st respondent, which however was not within the knowledge of the petitioner and by virtue of the security interest created under the property, it is sought to be taken over by the Bank, which made the petitioner to approach this Court seeking to quash Ext.P3 notice. 3. Heard the learned Standing Counsel appearing for the Bank and the learned counsel appearing for the 3rd respondent/borrower who submit that the idea and understanding of the petitioner is wrong and misconceived and the Writ Petition itself is not maintainable. 2 WP(C) No. 21584/2010 4. The only prayer of the petitioner/tenant is not to proceed with Ext.P3 notice issued by the Bank under the Rule 8 (1) of the Security Interest (Enforcement) Rules, 2002. The only ground raised in the Writ Petition is that the property described in Ext.P3 is an agricultural land and building therein as exempted under Section '31 (j)' of the Act. (which appears to be an obvious mistake, as the provision of law intended to be quoted by the petitioner might be Section '31 (i)' of the Act). The petitioner also contends that the petitioner's husband is a physically handicapped person and that the petitioner is ready and willing to settle the amount within three months. 5. The learned counsel for the petitioner submits during the course of hearing that, notwithstanding the contentions raised in the Writ Petition, the petitioner only seeks for some breathing time to vacate the premises. It is also assured and undertaken by the learned counsel for the petitioner that the petitioner will effect the vacant surrender of the premises within one month, if the other alternate arrangements for purchasing the property, after clearing the liability of the Bank do not turn to be fruitful in the meanwhile. 6. The above submission is recorded and the Writ Petition is disposed of, permitting the petitioner to effect the vacant surrender of the premises within one month. Subject to this, further coercive proceedings 3 WP(C) No. 21584/2010 stated as being pursued against the petitioner shall be kept in abeyance for a period of one month as aforesaid. If the petitioner turns to be a defaulter with regard to the liability to honour the undertaking as stated above, it will be open for the respondent Bank to proceed with further steps for taking over the physical possession of the property and to have it dealt with in accordance with relevant provision of law. The Writ Petition is disposed of accordingly. P.R.RAMACHANDRA MENON JUDGE dnc