IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM FRIDAY, THE 17TH SEPTEMBER 2010 / 26TH BHADRA 1932 WP(C).No. 18540 of 2010(N) -------------------------- PETITIONER(S): --------------- C.JOSE,S/O.CHELLAPPAN NADAR, JOSE BHAVAN, NAZHICHAL, KUTTAMALA PO, NEYYATTINKARA TALUK,THIRUVANANTHAPURAM DISTRICT. BY ADV. SRI.G.SUDHEER RESPONDENT(S): --------------- THE FEDERAL BANK LTD., REPRESENTED BY IT'S AUTHORIZED OFFICER/CHIEF MANAGER, REGIONAL OFFICE, FEDERAL TOWERS, STATUE, THIRUVANANTHAPURAM. PIN - 695 001 ADV. SRI.GEORGE VARGHESE (MANACHIRACKEL) FOR R1 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 17/09/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: C.K.ABDUL REHIM, J --------------------------- W.P(C) No.18540 of 2010-N ---------------------------- Dated this the 17th day of September, 2010. J U D G M E N T The petitioner, who is a Police Constable, had availed a housing loan from the respondent Bank to the tune of Rs.2,00,000/-, during the year 2006. The challenge in this writ petition is against steps taken under the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI Act). Consequent to default committed in repaying the loan, properties which are the secured assets were taken over possession by the respondent Bank, invoking provisions contained under Section 14(1) of the Act, by approaching the Chief Judicial Magistrate Court. Ext.P2 is the order issued by the Chief Judicial Magistrate in this regard. It is contended by the petitioner that when the matter was pending disposal before the C.J.M Court, the petitioner had effected payment of a sum of Rs.29,000/-, in view of direction issued by that Court. But thereafter he could not make payment of the balance, due to serious illness affected to him, in between. It is stated that the petitioner's son is also undergoing W.P(C) No.18540 of 2010-N 2 treatment with respect to some illness. 2. At the time when this writ petition was moved, on the basis of compliant raised by the petitioner that the respondents are not even permitting to take the study materials as well as school uniforms of the petitioner's daughter from the house which was dispossessed, an interim direction was issued by this Court and those articles were handed over to the petitioner. This Court further directed payment of an amount of Rs.30,000/-, which the petitioner had already remitted. It is further submitted that on 24.7.2010 he had effected payment of a further sum of Rs.20,000/-. 3. Eventhough various contentions are raised, learned counsel for the petitioner sought indulgence of this Court in directing to permit regularisation of the loan account, conceding that the petitioner is relinquishing all his challenge against the proceedings and that he is not intending to resort to any statutory remedies available against the proceedings. 4. Considering the fact that the proceedings initiated under the SARFAESI Act has reached a stage that the Bank had taken over possession of the property, and also considering the fact that there was no effective challenge raised by the petitioner during the course W.P(C) No.18540 of 2010-N 3 of the proceedings by invoking any of the statutory remedies available, I am of the opinion that interference on merits is not at all proper. However learned counsel for petitioner submitted that he is ready and willing to pay off the entire amount in default within a short time and further to make payment of future monthly instalments without any default. He also prays for indulgence in permitting re-occupation of the house for residence of his family. Eventhough interference on merits is not desirable, I am inclined to consider such requests on the basis of equity. 5. In the result, the writ petition is disposed of directing the petitioner to make payment of the entire defaulted amounts outstanding within a period of two weeks from today. On payment of such amounts, the respondent Bank shall permit the petitioner to continue payment of future monthly instalments in terms of the original loan agreement. 6. It is further directed that on regularisation of the loan account as directed above, petitioner shall be permitted to occupy the property only for the purpose of residence of himself and his family, without prejudice to the legal possession being retained by the respondent Bank and without prejudice to the rights of the W.P(C) No.18540 of 2010-N 4 respondents to evict such occupation without recourse to any legal proceedings, if necessary with police assistance. 7. It is made clear that on the event of default in payment of any of the instalments in future, the respondent Bank will be free to proceed with further steps for sale of the immovable property by evicting the petitioner, if necessary with police assistance, for which necessary assistance shall be rendered by the Station House Officer having jurisdiction in the area. 8. It is also made clear that the above relief is granted subject to the condition that the petitioner is precluded from raising any subsequent challenge against any proceedings on the issue. C.K.ABDUL REHIM JUDGE ab