IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM WEDNESDAY, THE 24TH NOVEMBER 2010 / 3RD AGRAHAYANA 1932 WP(C).No. 34729 of 2010(M) -------------------------- MC.146/2010 of C.J.M.,THODUPUZHA .................... PETITIONER(S): ----------------------- 1. K.A.BALAJI, PROPRIETOR, SAHYA ENTERPRISES, MUNNAR, R/AT PWD QUARTERS, DEVIKULAM ROAD, MUNNAR, IDUKKI DISTRICT, PIN - 685 612. 2. MRS.GIRIJA, LAKSHMI NIVAS, PWD QUARTERS, DEVIKULAM ROAD, MUNNAR, IDUKKI DISTRICT, PIN - 685 612. 3. DEEPAMOLE, PROPRIETOR, SAHYA INDANE SERVICES, DEVIKULAM ROAD, MUNNAR, IDUKKI DISTRICT, PIN - 685 612. BY ADV. SRI.ALEXANDER GEORGE RESPONDENT(S): ------------------------ 1. UNION BANK OF INDIA, REP.BY ITS MANAGER, MUNNAR BRANCH, MERMAID COMPLEX, NADAYAR ROAD, MUNNAR, IDUKKI DISTRICT, PIN 685- 612. 2. AUTHORIZED OFFICER (CHIEF MANAGER), UNION BANK OF INDIA, REGIONAL OFFICE, UNION BANK BHAVAN, M.G.ROAD, THIRUVANANTHAPURAM. STANDING COUNSEL MR.A.S.P. KURUP THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 24/11/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: jvt C.K.ABDUL REHIM, J. -------------------------------- W.P.(C)No. 34729 of 2010 ----------------------------------------------- DATED: 24th day of November, 2010 JUDGMENT With respect to a cash credit facility and term loan availed by the 1st petitioner from the respondent bank, proceedings under the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI Act), was initiated against immovable property pledged by the 2nd petitioner, which is the secured asset. The property in question contains a godown, which is let out to the 3rd petitioner, who is a distributor of L.P.G gas cylinders. Consequent to default committed in repayment of the loan, the respondent bank had initiated steps under the SARFAESI Act and on invoking Section 14(1) of the Act, the Chief Judicial Magistrate was approached. An Advocate Commissioner was appointed to take over the possession of the property. Accordingly, the property was taken over possession and godown was sealed. 2. According to the petitioners, they are ready and willing to clear all the dues within a period of seven months and the prayer is only to permit the 3rd petitioner to occupy the premises and to conduct business there, till such time. It is also submitted W.P.(C)No. 34729 of 2010 2 that considerable amounts has already been paid by the 1st petitioner. The petitioners also pointed out that O.A.No.334/2009 filed by the respondent bank is pending disposal before the Debt recovery Tribunal. 3. Considering the fact that the impugned proceedings is initiated under the provisions of the SARFAESI Act and considering the effective securities provided thereunder, I am inclined to entertain this writ petition on merits of the contentions. However, learned counsel for the petitioners submitted that the petitioners are not intending to pursue any statutory remedies against the proceedings. The prayer of the petitioners is to permit them to pay the entire liability in a phased manner and also to direct the respondent bank to permit re- occupation of the godown by the 3rd petitioner for conduct business. 4. At the time when the writ petition came up for consideration, this court insisted the petitioners to make payment of a sum of Rs.5,00,000/- in order to prove bonafides of their contentions. It is conceded that the said amount was already paid. Learned counsel appearing for the respondent bank W.P.(C)No. 34729 of 2010 3 submitted that the proceedings is at its fag end and the Bank is proposing to take steps for sale of the property. 5. It is noticed that the 3rd petitioner had filed an affidavit before this court stating that the 1st petitioner had already remitted a sum of Rs.5,00,000/- in compliance with the directions issued by this court and the balance amount will be paid as per the directions if any issued by this court without any default. It is further undertaken through that affidavit that the 3rd petitioner will surrender the said premise as and when directed by the 1st respondent. Considering the above facts, I am of the view that relief by way of indulgence in permitting re-occupation of the premises can be granted subject to condition of the petitioners remitting the balance within a reasonable time in instalments. 6. Accordingly, the writ petition is disposed of directing the respondents to permit the 3rd petitioner to occupy the godown contained in the property which is already been taken over possession, in order to conduct business of distributorship in L.P.G gas cylinders, subject to condition of the petitioners remitting the entire balance outstanding along with future interest and expense if any due, in 4 (four) equal monthly instalments falling due on or W.P.(C)No. 34729 of 2010 4 before 31.12.2010 and on or before the last day of the succeeding months. 7. It is made clear that the re-occupation, which will be permitted in accordance with the above directions will be subject to legal possession of the property being retained by the respondent Bank. The respondents will be at liberty to vacate such occupation without recourse to any legal proceedings, in case there is any default. It is also made clear that the respondent will be free to proceed with further steps in case there is default of payment of any one of the instalments as stipulated above and in such event the petitioners will be precluded from raising any subsequent challenge against such proceedings. C.K.ABDUL REHIM, JUDGE. dmb