IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM TUESDAY, THE 5TH OCTOBER 2010 / 13TH ASWINA 1932 WP(C).No. 29431 of 2010(D) ----------------------------------------- PETITIONER(S): ----------------------- 1. ANNAMMA SUNNY, W/O.SUNNY, AGED 42 YEARS, PROPRIETRIX, STUDIO 21, CONVENT ROAD, COCHIN-35. 2. SUNNY.S., S/O.SATHYANESAN, AGED 52 YEARS, 30/1918, MAMBRA ROAD, VYTTILA, KOCHI-19. BY ADV. SRI.BIJU ABRAHAM RESPONDENT(S): -------------------------- 1. THE INDIAN BANK, REPRESENTED BY ITS BRANCH MANAGER, PALLIMUKKU BRANCH, M.G.ROAD, ERNAKULAM. 2. THE AUTHORISED OFFICER, INDIAN BANK, CIRCLE OFFICER, CHITTOOR ROAD, COCHIN-35. R1 & R2 BY ADV. MR.E. EASWARAN, SC. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 05/10/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs C.K.ABDUL REHIM, J. ------------------------------------------- W.P.(C).No.29431 of 2010 ------------------------------------------- Dated this the 5th day of October, 2010 J U D G M E N T ---------------------- The petitioners are husband and wife. A Business Loan was availed in the name of the 1st petitioner from the respondent Bank, to the tune of Rs.15 lakhs. The 2nd petitioner is the guarantor and immovable property belonging to him was mortgaged for securing the loan. It is submitted that the 2nd petitioner was managing the business and due to his ill-health repayments could not be effected on a regular basis. Consequent to default committed in repayments, the respondents initiated proceedings under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI Act). Ext.P1 is the notice issued under Section 13(2) of the Act. 2. According to the petitioner, substantial payments were effected after receipt of Ext.P1, to the extent of more that Rs.8 lakhs. Ext.P3 and P4 receipts are produced in this regard. According to the petitioner, Ext.P2 and P5 W.P.(C).29431/10- -2- representations were submitted to the respondents seeking time for clearing payment of the arrears pointing out about the illness and other difficulties being faced by the petitioners. It is brought out through Ext.P7 that the 2nd petitioner suffered a fracture on his left leg due to a slip fall and he had undergone a surgery with internal fixation. It is evident that he was discharged from the hospital on 15.9.2010. Meanwhile Ext.P6 notice was issued threatening actions as contemplated under Section 13(4). Pointing to the contents of Ext.P6, learned counsel for the petitioner submitted that, eventhough the amount demanded therein was more than Rs.16 lakhs, it was brought down to an amount of Rs.9,38,573.99 as on 1.8.2010. Under the above circumstances petitioner seeks direction against respondents to refrain from coercive steps, on the promise that he will wipe off the arrears within a reasonable time, in installments. 3. Learned counsel for respondents on the basis of instructions submitted that, apart from the overdraft facility which is subject matter of this writ petition, the petitioners had availed another Housing Loan in which also there are arrears to the tune of more than Rs.20.60 lakhs. It is stated that proceedings under the SARFAESI Act is pending with respect W.P.(C).29431/10- -3- to properties mortgaged under that loan account also. Considering the huge amount in arrears with respect to both the loans and considering the fact that the overdraft facility in question was classified as NPA long back, the respondent Bank is not favouring in permitting any lengthy period for discharging the liability. 4. Since effective alternate remedies are provided under the scheme of the SARFAESI Act, I am not at all inclined to consider the merits of any of the challenges made against the proceedings. However, taking note of the factual aspects of illness of the 2nd petitioner and other circumstances prevalent in the matter, I am inclined to permit payment of the entire balance within a reasonable time in installments. 5. Accordingly the writ petition is disposed of directing the respondents 1 and 2 to refrain from proceeding with further steps pursuant to Ext.P6 notice, provided the petitioner remits the entire balance and future interest and expenses if any due, in 8 (eight) equal monthly installments falling due on or before 10.11.2010 and on or before the 10th day of the succeeding months. 6. It is made clear that on the event of default in payment of any of the installments the respondents will be at W.P.(C).29431/10- -4- liberty to proceed with further steps and on such event the petitioners will be precluded from raising any subsequent challenge against such proceedings either before this court or before any other forum. C.K.ABDUL REHIM, JUDGE. okb