IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM THURSDAY, THE 14TH OCTOBER 2010 / 22ND ASWINA 1932 WP(C).No. 28322 of 2010(M) -------------------------- PETITIONER: ------------------- ABDUL HAMEED MARAKKAR, S/O.A.P.A.K. ICHAVA MARAKKAR, ERAMAKKAVEETTIL PUTHIYAKATH HOUSE, CHETTIPADI POST, MALAPPURAM DISTRICT. BY ADV. SRI.C.M.MOHAMMED IQUABAL RESPONDENTS: ---------------------- 1. THE SOUTH INDIAN BANK LTD., REGIONAL OFFICE KOZHIKODE, P.B.NO.933- CHAKKORATHUKULAM, WEST HILL P.O.- KOZHIKODE – 673 005, REP. BY GENERAL MANAGER 2. THE AUTHORISED OFFICER, THE SOUTH INDIAN BANK LTD., REGIONAL OFFICE, KOZHIKODE, P.B. NO. 933 - CHAKKORATHUKULAM, WEST HILL P.O. - KOZHIKODE 673005. 3. THE SOUTH INDIAN BANK LTD., BRANCH OFFICE, PARAPPANANGADI, POST PARAPPANANGADI, MALAPPURAM DISTRICT, REP. BY ITS MANAGER, PIN - 673005. R1-3 BY ADVS. SRI.GEORGE VARGHESE, SC, SOUTH INDIAN BANK SRI.P.R.MILTON THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 14/10/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: VK C.K. ABDUL REHIM, J ------------------------------ WP(C) NO. 28322 OF 2010 ------------------------------------- Dated this the 14th day of October, 2010 JUDGMENT The petitioner availed two finanacial assistances from the respondent Bank, one being a cash credit facility for business purpose and other being a housing loan. Consequent to defaults committed in repayment of the loans, the respondents initiated proceedings under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI Act) and immovable property which is the secured asset were proceeded against. Ext.P1 is the notice issued under Section 13 (2) and Ext.P3 is the notice issued for taking over possession of the property [as per the steps contemplated under Section 13 (4)]. According to the petitioner, he had approached the Bank, expressing willingness to regularize the loan account by paying the defaulted amounts. But without acceding to such request 2 WP(C) No. 28322/2010 coercive steps of dispossession is being pursued. Hence this Writ Petition was filed. 2. Learned counsel appearing for the respondent Bank, on the basis of instructions, submitted that there is no transactions in the cash credit facility since the last more than one year and the business in question remains defunct and no stock was available in the premises. It is stated that an amount of more than Rs.19.70 lakhs is due under that account. With respect to the housing loan, it is submitted that the petitioner is in default of payment of more than 4.30 lakhs, and there was consecutive defaults in payment of the EMIs. However it is conceded by the respondents that if the petitioner clears payment of the defaulted amounts in the housing loan, he can be permitted to continue payment of the balance amounts as per original schedule. But with respect to the cash credit facility it is submitted that the petitioner cannot be permitted to continue, since the business is not functioning. 3 WP(C) No. 28322/2010 3. Having regard to the fact that the scheme of the statute provides effective remedies to the petitioner against steps taken under the SARFAESI Act, I am not all inclined to interfere on merits of the contentions. However, I am of the view that indulgence can be shown in the matter of permitting the petitioner to regularize the housing loan account. It is made clear that if the petitioner makes payment of the entire amount in default with respect to the housing loan account, within a period of one month from today, the respondents shall permit the petitioner to continue payment of future monthly instalments in accordance with original schedule. 4. As far as the cash credit facility is concerned, I am of the opinion that the petitioner can be afforded with an opportunity to approach the appropriate authority under the respondents either to seek revival of the loan account or seeking waiver and instalment payments. If any such approach is made by the petitioner, after regularizing the 4 WP(C) No. 28322/2010 housing loan account, the same shall be considered by the appropriate authority of the respondent Bank and a reply thereof shall be issued to the petitioner. 5. Needless to say that further steps for realizing the amounts under the cash credit facility shall be pursued only after taking decision on the matter as directed above. It is made clear that on the event of default in complying with any of the conditions stipulated as above, the respondent will be free to proceed with further steps based on the notices already issued, and on such an event the petitioner will be precluded from raising any subsequent challenge against such proceedings. C.K. ABDUL REHIM JUDGE dnc