IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON WEDNESDAY, THE 10TH JUNE 2009 / 20TH JYAISHTA 1931 WP(C).No. 15292 of 2009(F) -------------------------- PETITIONER: --------------- SHEEBA JAYARAJ, D/O. PEETHAMBARAN, PUTHIYATHU VEEDU, MAKKAPPUZHA P.O. PATHANAMTHITTA - 689676 BY ADV. SRI.V.SETHUNATH RESPONDENT: --------------- HOUSING DEVELOPMENT FINANCE CORPORATION LTD.,HDFC HOUSE,RAVIPURAM JUNCTION, M.G. ROAD, KOCHI-682015,REPRESENTED BY THE AUTHORISED OFFICER NISHAD AHMED O. BY ADV. MR. K.K. CHANDRAN PILLAI, SC. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 10/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.R. RAMACHANDRA MENON, J. ........................................................................ W.P.(C) No.15292 OF 2009 ......................................................................... Dated this the 10th June, 2009 J U D G M E N T The coercive proceedings taken by the Bank invoking the provisions under the SURFAESI Act have been subjected to challenge in the present Writ Petition. Sustainability of the action pursued by the respondent-Bank has been explained by the Bank in the statement filed before this court today. 2. The learned counsel appearing for the respondent-Bank submits that the entire action has been pursued in conformity with the relevant provisions of law and on the basis of the specific terms of the agreement executed in connection with the loan transaction. It is pointed out that the loan was actually availed by the husband of the petitioner from the Indian Overseas Bank, through the Power of Attorney executed in favour of the petitioner. Subsequently, the above loan was taken over by the respondent Bank providing 84 instalments for W.P.(C) No.15292 OF 2009 2 repayment of the loan, at the rate of Rs.15216/- per month, by virtue of the agreement executed on 31.01.2005. It is the case of the respondent Bank that the due payment was never effected by the petitioner, who, all along was only eager to place some or other hurdles on the way of the respondent Bank in realising the due amount. With this intent, the petitioner had also approached the Munsiff's Court, Ranni by filing O.S.No.125 of 2007, as borne by Ext.P3 and had obtained an order of temporary injunction against the respondent-Bank from proceeding against the petitioner, otherwise than in accordance with law. In the meanwhile, it is stated that the petitioner had issued two cheques to the Bank in satisfaction of the outstanding liability, which however, happened to be dis-honoured, leading to appropriate proceedings filed by the Bank under Section 138 of the Negotiable Instruments Act. It is pointed out that one of the two cases ended in conviction and sentence of the petitioner, also ordering compensation, whereas the other case is pending. The learned counsel for the respondent Bank also submits that the Writ Petition is not maintainable for the reason that the petitioner W.P.(C) No.15292 OF 2009 3 is not the actual borrower and the Writ Petition has been filed not in the capacity of Power of Attorney Holder of the original borrower, but in her individual capacity. It is also brought to the notice of the Court that pursuant to the steps taken by the Bank, the property was actually taken over possession on 29.05.2009, though the sale proceedings are yet to be finalised. 3. The learned counsel appearing for the petitioner submits that the original borrower was none other than her husband and that the petitioner would undertake to clear the entire outstanding liability, if some breathing time is given in this regard. The learned counsel further submits that the rate of interest demanded by the Bank is exorbitant as evident from Ext.P5 where it has been stated as 18%. The learned counsel for the respondent Bank submits that the actual rate of interest, at present, is only 11% and that the petitioner need not be aggrieved of the stipulation in Ext.P5 in this regard and that the amount will be realised applying the actual rate of interest as realisable, in tune with the terms of the agreement. 4. After considering the facts and figures, this Court finds W.P.(C) No.15292 OF 2009 4 that, it will only be just and proper to give one more opportunity to the petitioner and as such, the petitioner is hereby directed to remit a sum of Rs. Five lakhs within two weeks and the balance shall be cleared by way of four regular equal monthly instalments commencing from 08.07.2009. As such, all coercive steps shall stand deferred till such time. It is also made clear that, if any default is committed by the petitioner in effecting the repayment as aforesaid, the respondent Bank will be at liberty to proceed against the petitioner, from the stage where it stands now, for realisation of the entire amount in a lump sum. The Writ Petition is disposed of as above. P.R. RAMACHANDRA MENON, JUDGE. lk