IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN TUESDAY, THE 31ST MARCH 2009 / 10TH CHAITHRA 1931 WP(C).No. 3033 of 2009(J) ------------------------- CMP.5881/2008 of C.J.M., ALAPPUZHA .................... PETITIONER(S): --------------- MAYA, W/O.C.P.VINOD KUMAR, KORKKATTU THEKKETHIL AVALOORKUNNU WARD, THATHAMPILLY, ALAPPUZHA. BY ADV. SRI.S.SANAL KUMAR RESPONDENT(S): --------------- 1. ALAPPUZHA URBAN CO.OP.BANK LTD. A-67, REP. BY ITS CHIEF EXECUTIVE OFFICER ALAPPUZHA. 2. UNION OF INDIA, REP. BY THE SECRETARY ,MINISTRY OF LAW AND JUSTICE, CENTRAL GOVT., SECRETARIAT, NEW DELHI. 3. C.N.SATHEESH KUMAR, CHANDRAMANGALAM, NOR TH ARYAD PO., ALAPPUZHA. ADV. SMT.I.SHEELA DEVI FOR R1 SRI.P.PARAMESWARAN NAIR,ASST.SOLICITOR FOR R2 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 31/03/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOTTATHIL B RADHAKRISHNAN, J ........................................... WP(C).NO. 3033 OF 2009 ............................................ DATED THIS THE 31st DAY OF MARCH, 2009 JUDGMENT The petitioner's husband created a mortgage in favour of the first respondent for the purpose of a business loan stated to have been availed by his brother, the third respondent. This was in 1998. Accruals gathered and first respondent classified the account as a NPA and took action under SARFAESI Act. On 16.3.2009, the first respondent had placed a counter affidavit on record after serving copy to the petitioner. Along with that counter affidavit, Ext.R1(a) is produced. That is the application made under Section 14 of SARFAESI Act before the Chief Judicial Magistrate. It contains a specific averment regarding the creation of security interest by writ petitioner's husband who is now stated to be in Gulf. Having created the security interest, it is not open to the petitioner or her husband to contend that the bank should proceed against the third respondent, particularly when no property belonging to him is shown to have been offered as security. I do not find any jurisdictional error or legal infirmity Wpc 3033 of 2009 2 in the impugned proceedings. The contentions in the writ petition therefore fail. However, taking into consideration that an amount of Rs.25,000/- has been paid, on the basis of the interim order dated 29.1.2009, and the said order was thereafter extended without imposing any conditions till now, it is ordered that the distress action against the property in question will stand deferred, if an amount of Rs.50,000/- is paid on or before 30.4.2009 and on payment of further amounts @ Rs.30,000/- per month payable on or before 28th of every month, commencing from May 2009. If the outstandings are thereby wiped off, the impugned distress action will be deferred and dropped. If there is default in remitting any of the instalments as afore-directed, the benefit of this judgment will stand recalled automatically. THOTTATHIL B RADHAKRISHNAN, JUDGE lgk/31/3