IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON WEDNESDAY, THE 21ST JULY 2010 / 30TH ASHADHA 1932 WP(C).No. 21752 of 2010(T) -------------------------- PETITIONER: --------------- P.A.NISAR HAJI, S/O.ABOOBAKER HAJI, AGED 48 YEARS, RESIDING AT PANTHALINGAL HOUSE, PANNITHADAM, CHIRAMANGAD P.O., TRICHUR DISTRICT. BY ADV. MR. R.S.KALKURA MR. M.S.KALESH MR. HARISH GOPINATH MR. V.VINAY MENON MS. KVP.JAYALEKSHMY MR. M.AJAY (IRUMPANAM) RESPONDENTS: --------------- 1. INDIAN BANK, REPRESENTED BY ITS BRANCH MANAGER, INDIAN BANK, KUNNAMKULAM 680 503, TRICHUR DISTRICT. 2. AUTHORISED OFFICER, INDIAN BANK, CENTRAL OFFICE, P.B.NO.3573, CHITTOOR ROAD, COCHIN 682 O35. BY ADV. MR. S. ESWARAN, STANDING COUNSEL THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 21/07/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.R. RAMACHANDRA MENON J. ~~~~~~~~~~~~~~~~~~~~~~~ W.P. (C) No. 21752 of 2010 ~~~~~~~~~~~~~~~~~~~~~~~ Dated, this the 21st day of July, 2010 JUDGMENT The petitioner, with an idea to construct the first floor of his building, availed a loan of Rs. 8 lakhs from the respondent Bank on 12.2.2010, creating security interest over the property in question. Subsequently, when the petitioner turned to be a defaulter, the Bank issued notice under Section 13 (2) of the SARFAESI Act, intending to proceed with further steps for realization of the entire amount due, which is under challenge in this Writ Petition. 2. The case of the petitioner as put forth in the Writ Petition is that, the loan applied for by the petitioner was only a 'housing loan' with lesser rate of interest; whereas the same has been converted by the Bank as an 'overdraft facility' with higher rate of interest, without any consent or knowledge of the petitioner. It is also stated that the petitioner is taking every earnest efforts to see that the entire outstanding liability is wiped off, for which a short span of '4 months' is sought for, simultaneously adding that the petitioner does not intend to press any other the grounds in the Writ Petition, nor does he intend to avail the statutory remedy by approaching the DRT. W.P. (C) No. 21752 of 2010 : 2 : 3. The learned counsel appearing for the respondent Bank, on instructions submits that, the averments and allegations raised by the petitioner as to the alleged conversion of the housing loan to over draft facility are quite wrong and unfounded. It is stated that the very application submitted was only for the purpose of overdraft and not for housing loan. It is also an admitted fact that the petitioner turned to be a defaulter and this being the position, the steps taken by the Bank issuing notice under Sections 13 (2), intending to proceed against the property concerned over which security interest was created, is perfectly in conformity with the statutory prescription and not assailable under any circumstances, submits the learned counsel. 4. Taking note of the facts and circumstances and also in view of the bonafide intention expressed by the petitioner to clear the outstanding liability, this Court finds it fit and proper to permit the petitioner to clear the entire liability within a period four months. Accordingly, the petitioner is directed to clear the liability either by way of installments or by way of lump sum payment, at any rate, within a period four months. Subject to this, the coercive proceedings stated as being pursued against the petitioner shall be kept in abeyance for the time being. It is made clear that, if the petitioner commits any default in effecting the payment as above, the respondents will be at liberty to W.P. (C) No. 21752 of 2010 : 3 : proceed with further steps for realization of the entire amount in lump sum, from the stage where it stands now. The Writ Petition is disposed of accordingly. P. R. RAMACHANDRA MENON, JUDGE kmd