IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM FRIDAY, THE 1ST OCTOBER 2010 / 9TH ASWINA 1932 WP(C).No. 25907 of 2010(K) -------------------------- PETITIONER(S): --------------- THAHIRA, W/O.ABDUL NAZAR HUSSANAR, AGED 34 YEARS, RAIHANA MANZIL, PIRAYIRI (PO), MAPPILAKKAD, NEAR METRO NAGAR, PALAKKAD-678 007. BY ADV. SMT.A.G.ANEETHA SMT.M.KABANI DINESH RESPONDENT(S): --------------- 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, DEPARTMENT OF FINANCE SECRETARY, THIRUVANANTHAPURAM. 2. HDFC LTD., AUTHORISED OFFICER, 2ND FLOOR, PKM COMPLEX, MISSION SCHOOL JUNCTION, PALAKKAD-678 014, REPRESETNED BY AUTHORISED OFFICER. BY GOVT. PLEADER SRI.BIJOY CHANDRAN FOR R1 ADV. SRI.K.K.CHANDRAN PILLAI, SENIOR ADVOCATE FOR R2 SRI.A.S.SAJUSH PAUL FOR R2 SRI.THOMAS JAMES MUNDACKAL FOR R2 SRI.BOBBY THOMAS FOR R2 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 01/10/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: C.K.ABDUL REHIM, J --------------------------- W.P(C) No.25907 of 2010-K ---------------------------- Dated this the 1st day of October, 2010. J U D G M E N T The petitioner is the wife of a loanee, who is at present working in Dubai. The loan in question was availed for construction of a house, in the year 2005. According to the petitioner repayment in the loan could not be effected on a regular basis because of the unexpected loss of employment of her husband, who was working abroad at that time. Consequent to default committed, the second respondent issued Ext.P2 demand notice requesting payment of amounts outstanding as on 31.5.2009. According to the petitioner eventhough she had approached the Bank offering payment of a sum of Rs.60,000/-, the same was not accepted and further steps under the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI Act) was pursued. Invoking Section 14(1) of the Act, the respondents had now approached the Chief Judicial Magistrate Court and the petitioner is threatened with dispossession from the property. It is contended that the repayment period of the loan will expire only in W.P(C) No.25907 of 2010-K 2 the year 2012, and that the petitioner is ready to pay off the arrears outstanding, within a reasonable time in instalments. It is contended that if the petitioner and her family members are dispossessed from the property without affording a reasonable opportunity to wipe off the liability, they will be put to severe hardship and irreparable injuries. 2. Learned counsel for the second respondent Bank, on the basis of instructions, submitted that the total outstanding will be around Rs.7,35,000/- and the defaulted arrears itself will come about Rs.5,30,000/-. Therefore the Bank is not favouring in permitting regularisation of the account. 3. It is evident that the steps initiated under the SARFAESI Act had reached a stage of proceedings under Section 14(1) before the Chief Judicial Magistrate. It is pertinent to note that neither the petitioner nor her husband had chosen to avail any of the remedies provided under the Act to challenge steps taken under Section 13(2) and 13(4). Therefore, I am not inclined to entertain this writ petition on the merits of the contentions raised. 4. However, having considered the facts and circumstances, W.P(C) No.25907 of 2010-K 3 I am of the opinion that some indulgence can be shown in the matter of permitting the petitioner to pay off the entire liability within a reasonable time in instalments, on the basis of the submission made by the petitioner that the loanee is relinquishing all challenges and statutory remedies against the proceedings initiated. It is noticed that by virtue of an interim order passed by this Court on 20.8.2010, the petitioner had deposited a sum of Rs.50,000/- before the Chief Judicial Magistrate Court, Palakkad. Permission was given to the second respondent for withdrawal of the amount, as per order dtd.9.9.2010. 5. Under the above circumstances, the writ petition is disposed of directing the second respondent to keep all further coercive steps with respect to the proceedings initiated under the SARFAESI Act in abeyance, provided the petitioner remits the entire balance outstanding along with future interest due thereon, in 8 (eight) equal monthly instalments falling due on or before 15.11.2010 and on or before the 15th day of succeeding months. 6. It is made clear that on the event of default in payment of any of the instalments, the second respondent will be free to W.P(C) No.25907 of 2010-K 4 proceed with further steps before the Chief Judicial Magistrate Court. It is further made clear that the above relief is granted subject to the condition that the petitioner as well as her husband is precluded from raising any subsequent challenge against such proceedings, either before this Court or before any other forum. Sd/- C.K.ABDUL REHIM, JUDGE //True Copy// P.A to Judge ab W.P(C) No.25907 of 2010-K 5