IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM THURSDAY, THE 28TH OCTOBER 2010 / 6TH KARTHIKA 1932 WP(C).No. 29253 of 2010(F) -------------------------------------- PETITIONER: ------------------- T.S.SWAMINATHAN, AGED 36, S/O.LATE SUBRAMANIAN, THERAYANKODE HOUSE, EZHAKKAD P.O., MUNDUR, PALAKKAD. BY ADVS. SRI.I.DINESH MENON, SRI.M.JITHESH MENON. RESPONDENT: ---------------------- THE HOUSING DEVELOPMENT FINANCE CORPORATION LIMITED, HDFC HOUSE, NO.29, KAMARAJ ROAD, (NEAR CIRCUIT HOUSE), COIMBATORE-641 018, REP.BY ITS AUTHORISED OFFICER. BY SRI.K.K.CHANDRAN PILLAI, SENIOR ADVOCATE, ADVS. SRI.A.S.SAJUSH PAUL, SRI.THOMAS JAMES MUNDACKAL, SRI.BOBBY THOMAS. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 28/10/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: prv. C.K.ABDUL REHIM, J. ------------------------------------------- W.P.(C).No.29253 of 2010 ------------------------------------------- Dated this the 28th day of October, 2010 J U D G M E N T ---------------------- Issue involved in this writ petition relates to proceedings initiated under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI Act). Ext.P5 communication issued by the respondent Bank is under challenge in this writ petition. The petitioner had availed a housing loan from the respondent Bank to the tune of Rs.24,04,788/- during the year 2006. The tenure of repayment, as per terms of the loan agreement, will expire only in the year 2026. But consequent to default committed in repayment of the monthly instalments, the respondent initiated steps under the SARFAESI Act, against the immovable property, which is the secured asset. When steps for taking over possession of the property as contemplated under Section 13(4) was pursued, the petitioner had approached this court on the premise that the Debts Recovery Tribunal was not sitting at that time. However, when the Tribunal resumed sitting, the writ petition was disposed of directing the petitioner to invoke remedy available under Section 17(1). But the petitioner has not availed of any such remedy. W.P.(C).29253/10-F -2- 2. Pursuant to steps initiated under the SARFAESI Act the petitioner was dispossessed from the residential house situated in the secured asset. The petitioner thereupon approached this court again by filing WP(C).29718/09. On 23.11.2009 an interim order was issued by this court directing the petitioner to deposit a sum of Rs.6 lakhs. A further direction was issued on 7.11.2009 for depositing another sum of Rs.2,50,000/-. On payment of the amounts as stipulated, this court disposed of the writ petition through Ext.P1 judgment. The respondent Bank was directed to permit the petitioner to reside in the house situated in the property, on the petitioner executing an affidavit before a Notary Public, undertaking to vacate the building unconditionally as and when demanded. By the said judgment the petitioner was permitted to clear the arrears by way of 6 (six) equal monthly instalments, the first of which should have been paid on or before 15.2.2010 and the remaining instalments on or before the 15th day of the succeeding months. In the said judgment the petitioner was further permitted to file a request seeking permission to regularise the loan account on clearing payment of the outstanding liability and the Bank was directed to consider such request if submitted, within one month, and to pass appropriate orders thereon. W.P.(C).29253/10-F -3- 3. Ext.P2 is the request submitted by the petitioner seeking realisation of the account. It is mentioned that on receipt of Ext.P2 the petitioner was called upon for a personal hearing, on 18.4.2010. It is stated that the petitioner made a request to permit repayment of the amount at the rate of Rs.22,931/- per month, till the entire loan is cleared payment. But such request was not accepted by the Bank and Ext.P3 notice was issued to repay the entire loan amount in order to close the account, within a period of 12 to 16 months. Through Ext.P3 the petitioner was requested to decide on the repayment schedule as suggested after making it clear that the decision as above is taken without prejudice to rights granted to the Bank under the premise of Ext.P1 judgment. 4. Petitioner is refuting the contents of Ext.P3 letter on the basis that he never expressed willingness to repay the entire loan account within a period of 12 to 16 months. Therefore on receipt of Ext.P3 the petitioner submitted a further request as evidenced from Ext.P4 assuring the respondent Bank for payment of the entire loan amount in regular monthly instalments at the rate of Rs.22,931/-. But the said request was also declined on issuing Ext.P5 letter. On a perusal of Ext.P5 it is stated that the petitioner had backed out from the agreement arrived at the time of hearing to the effect W.P.(C).29253/10-F -4- of paying the entire balance amount within a period of 12 to 16 months. According to the respondent Bank the denial of the offer made by the petitioner is an unforeseen attitude, which will reflect the nature and conduct of the petitioner and therefore the Bank had lost confidence on the petitioner in order to consider any request made by him. Under such circumstances the petitioner was requested to pay the entire balance outstanding in 16 equal monthly instalments commencing from September 2010 onwards. The petitioner was requested to make payment of the entire outstanding to the tune of Rs.19,07,140/- in 16 equal monthly instalments of Rs.1,19,196/- each. 5. The decision taken by the respondent Bank in Ext.P5 is challenged in this writ petition. According to the petitioner, he was regularly paying monthly instalments due as per the original schedule, after Ext.P1 judgment and that there was no reason for respondent Bank to deny regularisation of the account. The stand taken in this regard is assailed as opposed to the terms of Ext.P1 judgment. The petitioner is challenging Ext.P5 on the ground that the insistence for payment of the entire amount within 16 instalments, is highly rigorous and unworkable. 6. Learned Standing Counsel appearing for the W.P.(C).29253/10-F -5- respondent Bank, on the other hand, contended that there was total failure on the part of the petitioner in complying with the condition stipulated in Ext.P1 judgment, for payment of the balance amount outstanding. It is pointed out that this court had never directed the respondent Bank to permit regularisation. On the other hand, the direction was only to consider request if any made by the petitioner in this regard. It is specifically submitted that the payment of balance outstanding in 12 to 16 monthly instalments, was an offer made by the petitioner and the petitioner had subsequently turned around and denied the fact that he had made such an offer. Under the said circumstances, as stated in Ext.P5, the Bank had lost confidence on the petitioner and therefore he should be compelled to make payment of the amount in terms of Ext.P5. 7. The limited question to be considered is as to whether there was any violation of the terms of Ext.P1 judgment. It is evident that in spite of failure on the part of the petitioner in invoking the statutory remedy, this court had shown indulgence on an earlier occasion. Even the petitioner was permitted to re-possess the building on the basis of specific terms on conditions. The petitioner being defaulted such conditions, is not entitled for any further indulgence from W.P.(C).29253/10-F -6- this court. However in Ext.P1, the respondent Bank was directed only to consider request if any made by the petitioner for permitting regularisation. But considering the history of the loan account and other attendant circumstances, the Bank took a decision only to the extent of permitting the petitioner to pay off the liability in 16 equal monthly instalments. 8. In a writ petition instituted under Article 226, it is not proper for this court to make any further interference with respect to the decision taken by the respondent Bank. Therefore I am not at all impressed by any of the contentions raised by the petitioner to interfere with Ext.P5. 9. However, learned counsel for the petitioner submitted that the condition imposed under Ext.P5 for payment of the entire balance in 16 equal monthly instalments will work out to be causing onerous liability which the petitioner could not comply with. Therefore an appeal is made to the conscience of this court, at least to enlarge the time for effecting payment to a considerable extent. 10. Having considered the entire facts and circumstances as narrated above, I am not inclined to entertain this writ petition. Accordingly the writ petition is dismissed. However, a slight modification with respect to the condition imposed in Ext.P5 will be justified on the facts and W.P.(C).29253/10-F -7- circumstances. Therefore, in partial modification of the condition stipulated in Ext.P5, the petitioner is permitted to make payment of the entire balance amount outstanding in 30 equal monthly instalments falling due on or before 30.11.2010 and on or before the last day of the succeeding months. 11. It is made clear that on failure to make payment of the amounts as stipulated above, the respondent will be free to proceed with further steps and as permitted under Ext.P5 judgment. It is also made clear that the petitioner will be precluded from raising any subsequent challenge against the proceedings if any initiated in this regard. C.K.ABDUL REHIM, JUDGE. okb