IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM THURSDAY, THE 3RD MARCH 2011 / 12TH PHALGUNA 1932 WP(C).No. 2814 of 2011(B) -------------------------------- PETITIONER(S): ------------------- AJEESH UMMER, AGED 26 YEARS, S/O.UMMER, MOOLAYIL HOUSE, KAVUMKARA, MARKET P.O., MUVATTUPUZHA. BY ADV. SRI.N.K.MOHANLAL RESPONDENT(S): -------------------- 1. CHIEF MANAGER AND AUTHORISED OFFICER, UNION BANK OF INDIA, M.G.ROAD, KOCHI - 682 035. 2. BRANCH MANAGER, UNION BANK OF INDIA, MUVATTUPUZHA - 686 661. R1 & R2 BY ADV. SRI.A.S.P.KURUP, SC., UBI THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 03/03/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: svs C.K.ABDUL REHIM, J --------------------------------------- W.P(C) No.2814 of 2011-B ---------------------------------------- Dated this the 3rd day of March, 2011. J U D G M E N T Challenge in this writ petition is against Ext.P7 notice issued under Rule 8 of the Security Interest (Enforcement) Rules 2002, intimating steps taken as contemplated under Section 13(4) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI Act). It is noticed that, when the proceedings was initiated on an earlier occasion, in the year 2009, the petitioner had approached this Court. From Ext.P5 judgment it is evident that when that writ petition came up for admission on 25.5.2009, an interim stay was granted subject to condition of the petitioner remitting a sum of Rs.1 lakh. But the petitioner made payment of only a sum of Rs.25,000/-. A petition for enlargement of time was seen filed in that case. However, this Court disposed of the writ petition on the basis of indulgence expressed by the respondent Bank to the effect that the loan in question can W.P(C) No.2814 of 2011-B 2 be regularised if the petitioner clears payment of the amount overdue. This Court disposed of the said writ petition directing the petitioner to make payment of the amounts overdue as on 31.5.2009, along with interest, within a period of one month from the date of that judgment. The specific direction to the petitioner is to clear the entire amounts which will be intimated by the respondent Bank. On regularising the account, the respondent was directed to permit the petitioner to continue payment of future monthly instalments as stipulated originally. A default clause was also incorporated in Ext.P5 judgment to the effect that if the petitioner commits consecutive default in payment of more than two equal monthly instalments, it will be left open to the respondent to proceed with further steps. 2. Ext.P5 judgment was pronounced on 29.5.2009. Evidently the petitioner had failed to comply with the conditions stipulated for regularisation of the account as well as for payment of future monthly instalments. The W.P(C) No.2814 of 2011-B 3 notice impugned in this writ petition (Ext.P7) was issued nearly about 1 ½ years after Ext.P5 judgment. Contention of the petitioner is that, there was failure on the part of the respondent Bank in intimating the exact amounts overdue for payment in order to regularise the account and therefore the petitioner was prevented from regularising the account as directed in Ext.P5 judgment. 3. In the counter affidavit filed on behalf of respondents 1 and 2, it is specifically mentioned that a demand notice was issued subsequent to Ext.P5 judgment, on 2.6.2009 as evidenced from Ext.R2A, receipt of which was acknowledged by the petitioner, as evidenced from the postal acknowledgment card, Ext.R2B. Therefore the contention of the petitioner that the respondent Bank had failed to intimate the amount due, is stoutly denied. 4. Referring to Exts.R2A and R2B, learned counsel for the petitioner raised a contention that the notice was issued not in strict compliance with the directions contained in Ext.P5 judgment. It is argued that the total amount due W.P(C) No.2814 of 2011-B 4 was intimated and the amount overdue for regularisation was not correctly intimated. On a perusal of Ext.R2A it is evident that the total outstanding as well as the overdue amount were separately shown. However, it is evident that inspite of lapse of 1 ½ years the petitioner has not taken any earnest efforts to regularise the account by complying with the directions contained in Ext.P5 judgment. 5. Further contention raised by the petitioner is regarding correctness of the amount now demanded. The petitioner relies on Ext.P6, a statement prepared by his own, to show that the amount now claimed is not true and correct. I am afraid, this Court could not entertain any such contentions, since an effective alternative remedy provided under the statute and appreciation of evidence on various factual aspects is required for adjudicating on such disputes. 6. From the facts and circumstances as narrated above, I feel that there was callous inaction on the part of the petitioner in availing the benevolence granted by the W.P(C) No.2814 of 2011-B 5 respondent Bank as well as which was permitted through Ext.P5 judgment. Therefore, I am of the considered opinion that it will be highly unjustifiable on the part of this Court in interdicting with the proceedings now initiated by the respondent Bank in exercise of jurisdiction under Article 226 of the Constitution of India. 7. However, it is made clear that rights if any available to the petitioner to invoke statutory remedy is left open. The Writ Petition is dismissed with the observations as above. C.K.ABDUL REHIM JUDGE ab