IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM WEDNESDAY, THE 1ST DECEMBER 2010 / 10TH AGRAHAYANA 1932 WP(C).No. 34716 of 2010(L) --------------------------------------- PETITIONER: ------------------- SEBASTIAN.V.J., AGED 42 YEARS, S/O.JOSEPH, VELIYIL HOUSE, POLLETHAI P.O., ALAPPUZHA. BY ADV. SRI.K.C.SUDHEER. RESPONDENTS: ------------------------ 1. STATE BANK OF INDIA, BRANCH OFFICE AT KALAVOOR, ALAPPUZHA, REP.BY ITS MANAGER – 688 009. 2. AUTHORISED OFFICE, STATE BANK OF INDIA REGIONAL BUSINESS OFFICE, D.H.ROAD, ALAPPUZHA – 688 001. R1 & R2 BY SRI. R.S. KALKURA, S.C. S.B.I. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 01/12/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: prv. C.K.ABDUL REHIM, J. ------------------------------------------- W.P.(C).No.34716 of 2010 ------------------------------------------- Dated this the 1st day of December, 2010 J U D G M E N T ---------------------- Steps initiated under the provisions of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI Act) is under challenge in this writ petition. Consequent to default committed in repayment of a loan availed by the petitioner from the respondent Bank, proceedings was initiated against the immovable property which is the secured asset. Ext.P3 is the notice issued under Section 13(2). 2. According to the petitioner, he is a fisherman by profession and is a member of the Kerala Fishermen Workers Welfare Fund Board, as evidenced from Ext.P2 Pass Book. It is contended that the petitioner is liable to be exempted from payment of the loan amount, in view of the provisions contained in the Kerala Fishermen Debts Relief Commission Act, 2008 and that the petitioner had already approached the Commission constituted under the said Act. Ext.P1 is the receipt evidencing filing of such an application before the Commission. Learned counsel for the petitioner submitted that the Commission had already intimated the respondent Bank about pendency of the W.P.(C).34716/10 -2- matter and under such circumstances it is not legal and proper for the respondent Bank to initiate proceedings under the SARFAESI Act. 3. Learned counsel appearing for the respondent Bank, on the basis of instructions, submitted that even though the petitioner is a fisherman by profession, the loan in question was availed for the purpose of house construction and the nature of the loan sanctioned to the petitioner is a housing loan. The counsel points out that, the description and nature of facility mentioned in Ext.P3 notice that the loan in question is a housing loan, will indicate that will not come within the purview of the above said Act. 4. However, pointing out to the provisions contained in the Kerala Fishermen Debts Relief Commission Act, 2008 learned counsel for the petitioner submitted that any loan other than a commercial loan and a loan taken for luxury will come within the purview of debts as contemplated under the Act, if such facility is availed by a fisherman. 5. However, it is evident that the Commission constituted under the above said Act had not issued any direction to the respondent Bank to abstain from recovery steps. I am not intending to enter upon any findings regarding merits of the rival contentions with respect to the eligibility of the W.P.(C).34716/10 -3- petitioner to be considered under the provisions of the above Act, by the statutory Commission constituted. 6. But it is brought to my notice that coercive steps are initiated since the petitioner had defaulted regular payments of monthly instalments. Therefore I am of the view that the coercive steps initiated under the SARFAESI Act can be directed to be kept in abeyance if the petitioner regularises the loan account by payment of the defaulted amounts, within a reasonable time, in instalments, and further continues payment of the regular instalments, subject to decision which may be taken by the Commission constituted under the above said Act, on the basis of the petition already filed. 7. Under the above circumstances, the writ petition is disposed of directing the respondent Bank to keep in abeyance all further coercive steps initiated pursuant to Ext.P3 notice, provided the petitioner remits the defaulted amounts (defaulted monthly instalments along with interest and expenses if any due) in 3 (three) equal monthly instalments, falling due on or before 31.12.2010 and on or before the last day of the two succeeding months. The petitioner shall also make payment of the regular instalments due for the respective months along with such payments. 8. It is made clear that if the payment of defaulted W.P.(C).34716/10 -4- amounts is regularised as directed above, the respondents shall permit the petitioner to continue payment of monthly instalments in future, in accordance with the original schedule. 9. It is made clear that the above direction is issued subject to final outcome of the complaint submitted by the petitioner which is pending disposal before the Commission constituted under the Kerala Fishermen Debts Relief Commission Act, 2008. 10. It is also made clear that on the event of default in complying with any of the stipulations mentioned above, the respondents will be free to proceed with further steps. C.K.ABDUL REHIM, JUDGE. okb