IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM WEDNESDAY, THE 20TH OCTOBER 2010 / 28TH ASWINA 1932 WP(C).No. 27008 of 2010(A) --------------------------------------- PETITIONER(S): ---------------------- 1. K.A.THOMAS, AGED 95 YEARS, KALAPURACKAL HOUSE, VADAMA VILLAGE, MUKUNDAPURAM TALUK, MALA P.O.,THRISSUR DISTRICT. 2. K.T.RASSAL, AGED 32,S/O.K.A.THOMAS, KALAPURACKAL HOUSE, VADAMA VILLAGE, MUKUNDAPURAM TALUK, MALA P.O., THRISSUR DISTRICT. BY ADVS. SRI.M.N.MANOJ SRI.V.C.VALSAN RESPONDENT(S): ------------------------- 1. THE UNION BANK OF INDIA, REPRESENTED THROUGH ITS REGIONAL OFFICE,KOZHIKODE FIRST FLOOR, KSHB COMPLEX, VIKAS NAGAR, EAST HILL ROAD,KOZHIKODE-673006,REPRESENTED BYITS AUTHORISED OFFICER, CHIEF MANAGER. 2. THE UNION BANK OF INDIA, MALA BRANCH, REPRESENTED BY ITS MANAGER, MALA P.O. THRISSUR PIN-680732. R1 & R2 BY ADV. SRI.A.S.P.KURUP, SC, UBI THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 20/10/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss C.K.ABDUL REHIM, J. ------------------------------------------- W.P.(C).No.27008 of 2010 ------------------------------------------- Dated this the 20th day of October, 2010 J U D G M E N T ---------------------- The first petitioner is a person aged 95 years and he claims to be a freedom fighter. He was the President of the Grama Panchayat for a long period of 16 years. Challenge in this writ petition is against steps initiated by the respondent Bank under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI Act), consequent to default committed in repayment of an Educational Loan availed by the 2nd petitioner who is the son of the 1st petitioner. The property belonging to the 1st petitioner was mortgaged for securing the loan. Ext.P9 & P10 are the notices issued with respect to steps taken for taking over possession of the property, as contemplated under Section 13(4) of the Act. 2. The petitioners raise serious disputes regarding correctness of the amount in demand. It is further stated that the petitioners had approached the respondents on W.P.(C).27008/10-A -2- various occasions seeking permission to pay off the entire liability in easy installments, but without considering such requests coercive steps are now being pursued. 3. In the counter affidavit filed on behalf of the respondents it is mentioned that the loan in question was availed in the year 2001 for the purpose of higher studies of the second petitioner, and as per terms of the loan agreement it is to be repaid in 60 equal monthly installments starting from one year after completion of the course or on getting job for the 2nd petitioner, whichever is earlier. It is further stated that the repayment period of the loan expired long before and on the basis of requests made by the petitioners re-structuring of the loan was allowed. The amount outstanding (over due) was permitted to be paid in 4 equal monthly installments starting from November 2005 onwards and the balance was permitted to be paid within a period of 57 months starting from February 2007 onwards. Inspite of such benevolence, the petitioners have defaulted payments and the loan account was treated as NPA with effect from 30.12.2007. It is mentioned that there is an outstanding balance of Rs.3,62,402/-, due from the petitioners. 4. Under the scheme of the statute the petitioner has got W.P.(C).27008/10-A -3- an effective alternate remedy to challenge steps initiated under Section 13(4), by approaching the statutory authority, invoking Section 17(1). Having not chosen to avail any such remedy, this writ petition could not be entertained on merits, especially in view of the facts narrated by the respondents. 5. Having confronted with the above situation, learned counsel for petitioners submitted that they are not intending to pursue any such statutory remedies and they are prepared to relinquish all challenges against the proceedings initiated under the SARFAESI Act, except the dispute regarding correctness of amounts outstanding. It is expressed that the petitioners are ready and willing to pay off the entire liability within a reasonable time, in installments, provided the respondent Bank considers waiver of interest/penal interest and expenses to the possible extent. 6. Eventhough interference on merits is not at all desirable, I am of the considered opinion that the petitioners can be permitted to pay off the entire liability within a reasonable time, in installments. Accordingly the the writ petition is disposed of directing the respondents to keep in abeyance further coercive steps of recovery pursuant to the notices already issued, provided the petitioners remit the entire balance W.P.(C).27008/10-A -4- outstanding along with interest if any due, in 7 (seven) equal monthly installments falling due from 15.11.2010 onwards, and on or before the 15th day of the succeeding months. 7. It is left open to the petitioners to approach the appropriate authority under the respondents to get a copy of the statement of accounts and to point out discrepancies or mistakes if any in computing the balance. If any such approach is made, the respondents will furnish copies of statement of accounts and if there is any genuine mistakes the same will be considered. The respondents will also consider waiver of interest/penal interest and expenses to the possible extent taking note of the situation prevailing with respect to the petitioners are concerned. 8. It is made clear that on the event of default in payment of any of the installments the respondents will be at liberty to proceed with further steps and on such event the petitioners will be precluded from raising any subsequent challenge. C.K.ABDUL REHIM, JUDGE. okb