IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM WEDNESDAY, THE 27TH OCTOBER 2010 / 5TH KARTHIKA 1932 WP(C).No. 28610 of 2010(A) -------------------------- PETITIONER(S): --------------- KOSHY VARGHESE, AGED 66 YEARS, S/O.LATE VARGHESE KOSHY, THAVALATHIL PUTHENVEETTIL HOUSE, VETTIPPURAM MURI, PATHANAMTHITTA. BY ADV. SRI.T.M.ABDUL LATHEEF RESPONDENT(S): --------------- 1. AUTHORIZED OFFICER, (CHIEF MANAGER), SOUTH INDIAN BANK, REGIONAL OFFICE, PATHANAMTHITTA-689 645. 2. SOUTH INDIAN BANK, REPRESENTED BY ITS CHIEF MANAGER, REGIONAL OFFICE, PATHANAMTHITTA-689 645. 3. MANAGER, SOUTH INDIAN BANK, MYLAPPRA BRANCH, PATHANAMTHITTA-689 645. ADV. SRI.GEORGE VARGHESE (MANACHIRACKEL) FOR R1 TO 3 SRI.P.R.MILTON FOR R1 TO 3 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 27/10/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: C.K. ABDUL REHIM, J ------------------------------- WP(C) NO. 28610 OF 2010 ------------------------------------- Dated this the 27th day of October, 2010 JUDGMENT Proceedings initiated under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI Act) is under challenge in this Writ Petition. Consequent to default committed in repayment of a business loan availed by the petitioner from the respondent Bank, immovable property which is the secured asset is proceeded against. Pursuant to notice issued under Section 13 (2) of the Act, the respondent has initiated steps as contemplated under Section 13 (4) to take over possession of the property. According to the petitioner he is suffering from serious illness and is being faced with stringent financial conditions. It is submitted that eventhough approaches were made before the respondent seeking permission for waiver of interest/penal interest and for payment of balance amount in instalments, the respondents have not acceded to any 2 WP(C) No. 28610/2010 such request. Hence the petitioner is seeking interference of this Court. 2. Considering the scheme of the statute, it is evident that the petitioner has got effective alternative remedy against the coercive steps initiated under the SARFAESI Act. It is pertinent to note that the petitioner has not chosen to file any objections/representations on getting notice under Section 13 (2). Under the above circumstances, it is not proper for this Court to entertain the Writ Petition on the basis of merits of the contentions raised. 3. However, learned counsel appearing for the petitioner submitted that the petitioner is relinquishing all challenges against the proceedings and that he is not intending to pursue any remedies provided under the statute. On the other hand request is to permit him to pay off the liability within a reasonable time in instalments, subject to consideration of the request for waiver of possible amounts. 4. When the Writ Petition came up for 3 WP(C) No. 28610/2010 consideration, as a gesture of indulgence, this Court had stayed dispossession of the petitioner from the property subject to condition of making payment of a sum of Rs.1 lakh. It is reported that the petitioner had remitted the said amount. 5. Learned counsel appearing for the respondent Bank submitted that even after crediting all payments an amount of more than Rs.5.50 lakhs is outstanding payment. It is further submitted that only a notice under Section 13 (2) was issued to the petitioner and that the petitioner has not filed any objection against such notice. It is also stated that the Bank has not received any representation as the one produced as Ext.P2. 5. Having considered the totality of circumstances, I am of the opinion that eventhough interference on merits is not possible, indulgence can be shown in the matter of permitting the petitioner to pay off the entire liability within a reasonable time in instalments. 6. Accordingly, the Writ Petition is disposed of directing the respondents to keep in abeyance all further 4 WP(C) No. 28610/2010 coercive steps pursuant to Ext.P1 notice, provided the petitioner remits the entire balance along with future interest in 8 (eight) equal monthly instalments falling due on or before 15.11.2010 and on or before the 15th day of the succeeding months. 7. It is made clear that the petitioner will be at liberty to approach the respondents seeking waiver of interest/penal interest and expenses to the possible extent. Needless to say that if any such approach is made the respondents shall consider the same and take appropriate decision taken thereof. 8. It is further made clear that on the event of default in payment of any one of the instalment stipulated, the respondents will be at liberty to proceed with further steps and on such event, the petitioner will be precluded from raising any subsequent challenge. C.K. ABDUL REHIM JUDGE dnc