IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM WEDNESDAY, THE 24TH NOVEMBER 2010 / 3RD AGRAHAYANA 1932 WP(C).No. 34706 of 2010(K) -------------------------- PETITIONER(S): ----------------------- HABEEB.K.K, S/O.KADAR, AGED 37 YEARS, KALAPURAYIL HOUSE, PURAYAR,GANDHIPURAM, DESOM P.O., ALUVA. BY ADV. SRI.M.N.SANJITH SRI.JAISON JOSEPH RESPONDENT(S): ------------------------ 1. INDUS IND BANK LTD. 34/138D,SHALOM TOWERS, BYE PASS NORTH END, EDAPPALLY, KOCHI - 682 024, REP.BY ITS AUTHORISED OFFICER, R.UMASANKAR. 2. THE AUTHORISED OFFICER AND MANAGER, INDUS IND BANK LTD., OPP.SHENOY'S THEATRE, ERNAKULAM. 3. RESERVE BANK OF INDIA, REP.BY ITS REGIONAL MANAGER, ERNAKULAM. STANDING COUNSEL MR.JAISON JOSEPH THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON ON 24/11/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: jvt WP(C).No. 34706 of 2010 APPENDIX Petitioner's Exhibits :- Ext.P1 :- Copy of the certificate of registration issued by the Regional Transport Office, Ernakulam dt.16.10.2008. Ext.P2 :- Copy of the stage carriage permit issued by the Regional Transport Officer, Ernakulam dt.7.11.2008. Ext.P3 :- Copy of the repayment schedule downloaded from the website of the Respondents No.1. Ext.P4 :- Copy of the notice issued under Sec.13(2) of the SARFAESI Act dated 30.11.2009. Ext.P5 :- Copy of the notice dated 11.6.2010 issued to the petitioner by the Respondents No.1. Ext.P6 :- Copy of the letter submitted by the petitioner before respondent No.2 dated 8.11.2010. Respondent's Exhibits :- NIL //True Copy// P.A. to Judge C.K.ABDUL REHIM, J. -------------------------------- W.P.(C)No. 34706 of 2010 ----------------------------------------------- DATED: 24th day of November, 2010 JUDGMENT The petitioner had availed a loan from respondents 1 and 2 for purchase of a stage carriage vehicle bearing No.KL 41-B 4590. The loan in question was availed on 16.8.2008 and the tenure fixed for repayment is four years. Consequent to default committed in repayment proceedings were initiated under the provisions of Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI Act). Consequent to notice issued under section 13(2) of the Act, the vehicle was taken over custody by respondents 1 and 2, on 11.6.2010. The petitioner was served with Ext.P5 notice demanding payment of total outstanding of Rs.7,60,984/-. 2. According to the petitioner, the default happened due to unforeseen circumstances and financial constrains. It is stated that, in spite of approach made by the petitioner seeking regularization of the loan account by offering payment of 25% of the amount due, respondents 1 and 2 have not acceded to such request. Hence, this writ petition filed, seeking direction for release of the vehicle and for permitting regularization of the W.P.(C)No. 34706 of 2010 2 account. 3. Learned counsel appearing for respondents 1 and 2, on the basis of instructions submitted that, the petitioner had clandestinely transferred possession of the vehicle to 3rd person and there was resistance on the part of the petitioner as well as the person in possession of the vehicle, at the time when the vehicle was seized. Since the secured asset has now been possessed by the bank, which is a movable property, the prayer for release is opposed, since there is no other security available with respect to the loan transaction. 4. I find merit in the contention of the respondents, and I am of the opinion that regularization and release of the vehicle could not be permitted, without there being any further additional security provided for ensuring payment of the balance amount. 5. Having regard to the above situation, learned counsel for the petitioner submitted that he is ready and willing to make payment of the defaulted arrears within a period of two months. He further makes an offer that the petitioner will furnish bank guarantee for the entire amount outstanding and on that basis he is seeking directions for release of the vehicle. W.P.(C)No. 34706 of 2010 3 6. Considering the above offer, I am of the opinion that on the furnishing bank guarantee, interest of respondents 1 and 2 will be protected and on such premise no prejudice will be caused to the respondents in permitting regularization of the account and release of the vehicle. 7. Accordingly, this writ petition is disposed of directing the petitioner to make payment of the amounts in default (defaulted monthly instalments along with interest and expenses if any due) in two equal monthly instalments falling due on or before 15.12.2010 and on or before 15.01.2011. The petitioner will also make payment of the regular instalments due for the respective months , along with such payments. 8. On remittance of the first instalment as stipulated above and on the petitioner furnishing bank guarantee for the total balance outstanding, the respondents 1 and 2 shall release possession of the vehicle to the petitioner; it is further made clear that on payment of the defaulted amount as stipulated above, the respondents will permit the petitioner to pay the future monthly instalments, in accordance with the original schedule of repayment. W.P.(C)No. 34706 of 2010 4 9. However, it is made clear that in the event of default in complying with any of the conditions stipulated as above or in payment of any one of the future monthly instalments, the respondents will free to proceed with further steps, and on such event the petitioner will be precluded from raising any subsequent challenge. C.K.ABDUL REHIM, JUDGE. dmb