IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM FRIDAY, THE 3RD DECEMBER 2010 / 12TH AGRAHAYANA 1932 WP(C).No. 34559 of 2010(T) -------------------------- PETITIONER(S): --------------- 1. K.P.JACOB, AGED 50 YEARS, S/O.OUSEPH KODIYAN, KODUVAZHANA, NEERCODU P.O., ALANGAD-683511, ALANGAD ALWAYE WORKING IN H.M.T. 2. MARY DANIYA, AGED 48 YEARS, W/O.JACOB K.P., RESIDING AT DO. DO., WORKING AS POST MASTER. BY ADV. SRI.R.RAGHUNANDANAN RESPONDENT(S): --------------- HOUSING DEVELOPMENT FINANCE CORPORATION LTD., H.E.F.C.HOUSE P.O. 1667, RAVIPURAM JN., M.G.ROAD, KOCHI-682015, REP. BY ITS AUTHORISED OFFICER NISHAD AHAMED. ADV. SRI.K.K.CHANDRAN PILLAI, SENIOR ADVOCATE SRI.A.S.SAJUSH PAUL SRI.THOMAS JAMES MUNDACKAL SRI.BOBBY THOMAS THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 03/12/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: C.K. ABDUL REHIM, J ------------------------------- WP(C) NO. 34559 OF 2010 ------------------------------------- Dated this the 3rd day of December, 2010 JUDGMENT Petitioners are husband and wife. Challenge in this Writ Petition is against proceedings initiated under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI Act). Consequent to default committed in repayment of loans availed by the petitioners, the respondent Bank had initiated steps against the immovable property, which is the secured asset. Invoking Section 14 (1) of the SARFAESI Act, the Chief Judicial Magistrate Court was approached and an Advocate Commissioner was appointed to take over possession of the property. Ext.P8 is an interim report filed by the Advocate Commissioner before that Court. 2. According to the petitioners the loans in question were availed in the year 2004-05 and repayment period is for 15 years. It is further stated that the 2 WP(C) No. 34559/2010 petitioner had effected considerable payments in the loan accounts. It is the case of the petitioners that inspite of approach made seeking regularisation of the loan accounts by offering payment of defaulted amounts, the respondent is not accepting such request and the coercive steps are being pursued. 3. Heard, learned counsel appearing for the respondent. It is submitted that two housing loans were availed by the petitioners in the year 2004 and 2005 respectively and around 20 monthly instalments are in default at present. It is stated that even the arrears in default will be around Rs.34,000/- including interest and expenses. It is further stated that the loan account is in chronic default and the petitioners have not cared to regularise the same inspite of repeated demands. 4. It is noticed that the petitioners have not availed the statutory remedy when steps under Section 13 (4) of the SARFAESI Act was initiated. Considering the effective 3 WP(C) No. 34559/2010 alternate remedy provided under the statute, I am of the opinion that it is not proper and justified for this Court to interfere with the proceedings at this stage. However, learned counsel for the petitioner submitted that the petitioners are not intending to pursue any such remedy and that they are relinquishing all challenges against such proceedings. On the other hand a limited prayer is made to permit to regularise the account by remitting the defaulted amounts, within a short period. Considering the limited prayer raised, I am of the opinion that eventhough interference on merits is not desirable the petitioner can be permitted to regularise the account. 4. Accordingly, the Writ Petition is disposed of directing the respondent to keep in abeyance further coercive steps pursuant to proceedings initiated before the Chief Judicial Magistrate, provided the petitioners remit the entire arrears outstanding (defaulted monthly instalments along with interest and expenses if any due) in 2 (two) equal 4 WP(C) No. 34559/2010 monthly instalments falling due on or before 31.12.2010 and on or before 31.01.2011. The petitioners shall also remit the regular monthly instalments due with respect to the above months, along with the payments as directed above. 5. Needless to say that the petitioners shall be issued with a statement of accounts by the respondent for the purpose of facilitating remittance of such amounts. It is also made clear that the petitioners will be at liberty to point out discrepancy if any in such accounts and if the respondent is convinced of any such discrepancy the same shall be corrected. 6. If payment of defaulted amount is regularised as directed above, then the respondent will continue payment of future instalments in accordance with the original schedule of repayment. 7. It is further made clear that on the event of default committed in payment of any one of the instalments as stipulated above or any of the future instalments, the 5 WP(C) No. 34559/2010 respondent will be free to proceed with further steps pursuant to the proceedings which is already initiated under Section 14 (1). It is also made clear that the relief granted above is subject to condition that the petitioners are precluded from raising any subsequent challenge against such proceedings. C.K. ABDUL REHIM JUDGE dnc