IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM TUESDAY, THE 8TH FEBRUARY 2011 / 19TH MAGHA 1932 WP(C).No. 3609 of 2011(A) ------------------------- CMP.10292/2010 of C.J.M.,KOLLAM .................... PETITIONER: ------------------ SHOOJA.N., AGED 51 YEARS, S/O.NARAYANAN, POOMANGALAM HOUSE, NEDUMGOLAM, PARAVOOR, KOLLAM. BY ADV. SRI.R.MANOJ RESPONDENTS: ---------------------- 1. THE HOUSING DEVELOPMENT FINANCE CORPORATION, REPRESENTED BY ITS AUTHORIZED OFFICER HOUSING DEVELOPMENT FINANCE CORPORATION HOUSE, VAZHUTHACAUD, THIRUVANANTHAPURAM. 2. THE AUTHORIZED OFFICER, HOUSING DEVELOPMENT FINANCE, CORPORATION, HDFC HOUSE, VAZHUTHACAUD, THIRUVANANTHAPURAM. BY STANDING COUNSEL SRI.A.S.SAJUSH PAUL. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 08/02/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: C.K.ABDUL REHIM, J. = = = = = = = = = = = = WP(C).No.3609 of 2011-A. = = = = = = = = = = = = Dated this the 8th February, 2011. J U D G M E N T Challenge in this writ petition is against coercive steps initiated under the provisions of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI Act). A housing loan availed by the petitioner from the respondent Bank during the year 1999 was defaulted payment consecutively. As a consequence, proceedings under Section 13(4) was initiated against the immovable property, which is the residential house of the petitioner. The writ petition was filed at the stage when the Advocate Commissioner appointed by the Chief Judicial Magistrate Court had issued notice of eviction. However, it was reported that before the matter was considered by this Court, the petitioner was physically dispossessed from the building in question. Under such circumstance an application was filed as WP(C).No.3609 of 2011-A. 2 IA.No.2091/2011 seeking direction against the respondents to hand over possession of the property which was taken over by the Advocate Commissioner. 2. In a statement filed on behalf of the respondent it is mentioned that the loan in question was availed in the year 1999 with a repayment period of 168 months (14 years). But the petitioner had remitted only the EMIs. with respect to 11 months. It is stated that 128 EMIs. are in default, total amounting to around Rs.3.97 lakhs. It is also pointed out that the period of repayment will expire in the year 2013. According to the respondents, there is gross negligence on the side of the petitioner in effecting payment of any considerable amount, in spite of lapse of so many years. It is pointed out that even after initiating proceedings under the SARFAESI Act, the respondent Bank had waited for considerable years, in order to persuade the petitioner to settle the account. Hence the respondent contended that interference by this Court is not at all WP(C).No.3609 of 2011-A. 3 justified. 3. Considering the fact that the loan account is in chronic default and also considering the fact that the petitioner had not challenged the steps initiated under Sec.13(4) before the statutory authority, it is not proper on the part of this Court to interfere in any manner to restrain the Bank from proceeding with further steps 4. However, learned counsel for the petitioner submitted that the petitioner is relinquishing all challenges against the proceedings and also relinquishing rights if any to invoke the statutory remedy. On the other hand, a limited prayer is made to permit re-occupation of the building in question on the basis of an undertaking that a considerable amount will be paid within a short time. The petitioner also expressed his willingness to make payment of the entire balance amount within a short period in a phased manner. 5. While considering the limited relief sought for, I WP(C).No.3609 of 2011-A. 4 am of the view that even though interference on merits is not desirable, indulgence can be shown in permitting the petitioner to remit the entire balance amount within a reasonable time in instalments and to permit re-occupation on payment of considerable amount. 6. Under the above circumstance the writ petition is disposed of directing the respondents to keep in abeyance all further proceedings till 28.2.2011. The petitioner is directed to remit an amount of Rs.2,00,000/- (Rupees Two lakhs only) on or before 28.2.2011. On remittance of the said amount, the respondents shall permit the petitioner to re-occupy the building situated in the property, without prejudice to the legal right of the respondent Bank to continue in legal possession. The petitioner shall make payment of the balance amount along with interest and expenses if any due, in 6 (six) equal monthly instalments falling due on or before 31.3.2011 and on or before the last day of the succeeding months. WP(C).No.3609 of 2011-A. 5 7. It is made clear that on the event of default in payment of any one of the instalments as stipulated above, the respondents will be at liberty to evict the occupation in the residential building, without recourse to any legal procedure, if necessary with the assistance of the Police authorities having jurisdiction over the local area, or with the assistance of the Chief Judicial Magistrate Court. 8. It is further made clear that the relief granted above is subject to the condition that the petitioner is prevented from raising any dispute against any further action in the matter. C.K.ABDUL REHIM, (Judge) Kvs/-