IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN MONDAY, THE 13TH OCTOBER 2008 / 21ST ASWINA 1930 WP(C).No. 14747 of 2008(E) -------------------------------------- PETITIONERS --------------- 1. KOCHURANI ANTONY, 64 YEARS, W/O.LATE K.ANTONY MATHEW, KUMARANASAN NAGAR, ELAMKULAM, KADAVANTHARA P.O., ERNAKULAM-20. 2. MANOJ ANTONY, AGED 43, S/O.K.ANTONY MATHEW, 37/1471C, OPP.NO.1 BLOCK, KUMARANASAN NAGAR, ELAMKULAM, KADAVANTHARA P.O., ERNAKULAM-20. BY ADV. SRI.P.JACOB VARGHESE (SR.) SRI.VARUGHESE M EASO SMT.PRAISHEEL PRAKASAM SMT.ELIZEBETH MEERA SRI.P.J.VINOD JOSEPH SRI.VIVEK VARGHESE P.J. RESPONDENTS: ----------------------- 1. THE AUTHORISED OFFICER, SOUTH INDIAN BANK LTD., REGIONAL OFFICE, SHANMUGHAM ROAD, ERNAKULAM. 2. UNION OF INDIA, REP. BY THE SECRETARY TO GOVERNMENT. ADV. SRI.K.K.JOHN,SC,SOUTH INDIAN BANK FOR R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 13/10/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.14747/2008 APPENDIX PETITIONERS EXHIBITS P1:- COPY OF THE LETTER DT. 16.8.04 ISSUED TO THE SENIOR MANAGER OF THE IST RESPONDENT. P2:- COPY OF THE STAY ORDER IN WPC. 8253/06 DT. 20.3.06. P3:- COPY OF THE NOTICE DT. 10.5.08 PUBLISHED IN THE NEW INDIAN EXPRESS. P4:- COPY OF THE LETTER DT. 12.5.08 BY THE PETITIONER TO THE IST RESPONDENT. RESPONDENT'S EXHIBITS R1(a):- COPY OF THE RETURNED ENVELOPE ADDRESSED TO THE IST PETITIONER. R1(b):- COPY OF THE RETURNED ENVELOPE ADDRESSED TO THE 2ND PETITIONER. R1(c):- COPY OF THE PUBLICATION IN THE ''NEW INDIAN EXPRESS'' DAILY DT. 14.6.07. R1(d):- COPY OF THE PUBLICATION IN THE ''MANGALAM'' DAILY DT. 14.6.07. R1(e):- COPY OF THE PANCHNAMA PREPARED SHOWING THE AFFIXTURE OF NOTICE DT. 14.6.07. /TRUE COPY/ P.A TO JUDGE THOTTATHIL B.RADHAKRISHNAN, J. ------------------------------------------- W.P(C).No.14747 OF 2008 ------------------------------------------- Dated this the 13th day of October, 2008 JUDGMENT The petitioners availed a loan from the first respondent and defaulted repayment. This resulted in the impugned proceedings under the SARFAESI Act. That was preceded a suit before the Sub Court and later an original application before the Debts Recovery Tribunal. Though the petition before the DRT is pending, decree of the civil court really clinches the issues relatable to the disputes between the parties. Hence, nothing survives. The creation of security interest is not disputed. The transaction stands. Over dues can be recovered in terms of the SARFAESI Act. There is no jurisdictional error or legal infirmity in that. All that the learned counsel for the petitioner could project is that the Bank could be persuaded to consider a request for slashing at least a portion of the total outstandings by reducing the overdue interest. It is also noticed that an amount of Rs.6,00,000/- has been remitted following the interim order. WPC.14747/08 Page numbers In the aforesaid scenario, repelling all contentions and precluding the petitioners from taking recourse to any other proceedings, this writ petition is ordered directing that if the petitioners remit amounts at the rate of Rs.3,00,000/- per month, payable on or before the last working day of every month commencing from October, 2008, the impugned distress action shall stand withheld. On the petitioners depositing four instalments as aforesaid, the Bank will consider any request of the petitioners for waiver of any portion of the total outstandings. However, if there is default in remitting any of the instalments as aforesaid, the benefit of this judgment shall stand recalled automatically and distress action shall follow. Sd/- THOTTATHIL B.RADHAKRISHNAN, Judge kkb.