IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM WEDNESDAY, THE 15TH JUNE 2011 / 25TH JYAISHTA 1933 WP(C).No. 12210 of 2011(A) ---------------------------------- PETITIONER(S): ------------------- 1. A.V. RAMABHADRAN, CRA - 123, CHITHRA CHECHERY LANE, NALANCHIRA.P.O, THIRUVANANTHAPURAM. 2. SUDHARMA R., CRA-123, CHITHRA CHECHERY LANE, NALANCHIRA P.O., THIRUVANANTHAPURAM. BY ADV. SRI.N.SASIDHARAN UNNITHAN RESPONDENT(S): --------------------- 1. THE HDFC LIMITED, REPRESENTED BY ITS AUTHORISED OFFICER, SRI.M.S. SREEKUMARAN NAIR, HDFC HOUSE, VAZHUTHACAUD, THIRUVANANTHAPURAM - 695 010. 2. THE BRANCH MANAGER, HDFC LIMITED, VAZHUTHCAUD, THIRUVANANTHAPURAM - 695 010. R1,2 BY SRI.K.K.CHANDRAN PILLAI, SENIOR ADVOCATE ADV. SRI.A.S.SAJUSH PAUL, SC. HDFC. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 15/06/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: svs W.P.(C). NO. 12210/2011 APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE AFFIDAVIT AND PETITION IN CMP NO.1901/2010 BEFORE THE CHIEF JUDICIAL MAGISTRATE COURT, THIRUVANANTHAPURAM. P2: COPY OF THE COUNTER AFFIDVIT IN CMP.NO.1901/2010 BEFORE THE CHIEF JUDICIAL MAGISTRATE COURT, THIRUVANANTHAPURAM. P3: COPY OF THE JUDGMENT IN DATED 17/08/2010 IN WPC. NO.24310/2010 OF THIS HON'BLE COURT. P4: COPY OF THE CASH RECEIPT DATED 05/10/2011 ISSUED BY THE RESPONDENT. P5: COPY OF THE BALANCE STATEMENT OF ACCOUNTS ISSUED TO THE PETITIONERS BY THE RESPONDENT. P6: COPY OF THE ORDER DATED 01/03/2011 IN CMP.NO.1901/2010 OF THE CHIEF JUDICIAL MAGISTRATE COURT, THIRUVANANTHAPURAM. P7: COPY OF THE DISCHARGE SUMMARY ISSUED FROM THE KERALA INSTITUTE OF MEDICAL SCIENCE, THIRUVANANTHAPURAM. P8: COPY COF THE DISCHARGE SUMMARY ISSUED FORM THE S P FORT HOSPITAL, THIRUVANANTHAPURAM. RESPONDENT'S EXHIBITS: NIL /TRUE COPY/ P.A. TO JUDGE. svs C.K.ABDUL REHIM, J. ------------------------------- W.P.(C).No.12210 of 2011 ------------------------------- Dated this the 15th day of June, 2011. J U D G M E N T Challenge in this writ petition is against the coercive steps initiated under Section 14(1) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI Act) for taking over possession of the immovable property, which is the secured asset, by approaching the Chief Judicial Magistrate Court. It is evident from Ext.P6 order that, the CJM court had appointed an Advocate Commissioner to take over possession of the property. 2. From the facts it is evident that, the petitioner had approached this Court on an earlier occasion, when the respondents have filed the application under Section 14(1) of the Act before the CJM Court. In Ext.P3 judgment, the said writ petition was disposed of recording statement of the petitioners that they are not intending to avail any statutory remedy as provided under Section 17 of the Act. The 2 W.P.(C).No.12210 of 2011 petitioners pressed only for a direction to the respondents to furnish proper statement of account, in order to facilitate them to clear the liability in a phased manner. On the basis of such submissions made, indulgence was shown by this Court in permitting the petitioner to make payment of the amounts in a phased manner. The petitioner was directed to deposit a sum of Rs.2 lakhs within one month from the date of receipt of Ext.P3 judgment. On payment of such a mount, the respondent Bank was directed to furnish detailed statement of accounts pointing out the actual balance due, after giving credit to all the amounts paid. The petitioners were directed to clear payment of the remaining amounts by way of 5 equal monthly instalments, starting from 30.10.2010 onwards. 3. It is conceded that, after payment of an amount of Rs.2 lakhs stipulated in Ext.P3, the petitioners have defaulted payment of further instalments, inspite of the fact that the respondent Bank had furnished detailed statement of accounts. Under such circumstances, the challenge raised herein against the very same proceedings initiated under 3 W.P.(C).No.12210 of 2011 Section 14(1) cannot be entertained. It is pertinent to note that, inspite of failure to comply with the conditions stipulated in Ext.P3 judgment, the petitioners have not sought for any appropriate relief from this Court in the said case. 4. Considering the above factual aspects, this Court was not inclined to entertain this writ petition. However, on the basis of persuasive submissions made about the prejudices, which will be caused to the petitioners on dispossession of the family from the secured assets, indulgence was shown in restraining such actions, subject to condition of the petitioners remitting a sum of Rs.2 lakhs in two instalments falling due on or before 30.4.2011 and 25.5.2011. It is submitted that the condition stipulated has already been complied with. Learned counsel for the petitioners prayed to this Court for an equitable relief in permitting payment of the balance within a short period, in instalments. It is submitted that, if the property in question is taken over possession, the petitioners will be thrown to street. I am of the view that, since the petitioners have relinquished all challenges raised, 4 W.P.(C).No.12210 of 2011 they can be permitted to pay off the balance amount within a short period, in instalments. 5. Accordingly, the writ petition is disposed of directing the respondents to keep in abeyance all further steps for dispossession and sale of the property, subject to condition of the petitioners remitting the entire balance outstanding, along with interest and expenses if any due, in 3 (three) equal monthly instalments, falling due on or before 30.6.2011 and on or before the last day of the succeeding months. 6. It is made clear that on the event of default in payment of any one of the instalments as stipulated above, the respondents will be 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 ami/