IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM TUESDAY, THE 31ST MAY 2011 / 10TH JYAISHTA 1933 WP(C).No. 4306 of 2011(K) ------------------------- PETITIONER(S): --------------- SHERLY, D/O.SHOBHI, AGED 35 YEARS, REVATHY, VELLANAD, MITHRANIKETHAN.B.O., THIRUVANANTHAPURAM-695 543. BY ADV. SRI.SREEKANTH S.NAIR RESPONDENT(S): --------------- THE AUTHORISED OFFICER, MANAGER. NEDUMANGAD CO-OPERATIVE URBAN BANK LTD.NO.3193, NEDUMANGAD.P.O., THIRUVANANTHAPURAM-695 541. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 31/05/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: C.K.ABDUL REHIM, J --------------------------------------- W.P(C) No.4306 of 2011-K ---------------------------------------- Dated this the 31st day of May, 2011. J U D G M E N T Consequent to default committed in repayment of a housing loan availed by the petitioner from the respondent, proceedings under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI Act) was initiated. The immovable property, which is the secured asset, was proceeded against. On invoking Section 14(1), the respondent had approached the Chief Judicial Magistrate Court, Thiruvananthapuram and that Court had appointed an Advocate Commissioner to take over possession of the property. 2. Contention of the petitioner is that the loan in question was availed in the year 2009 and the repayment period is for 60 months. It is further contended that coercive steps were pursued without acceding to the request made by the petitioner to permit regularisation of W.P(C) No.4306 of 2011-K 2 the account. Further contention raised by the petitioner is that the amount now demanded in Ext.P1 petition, which was filed before the Chief Judicial Magistrate Court, is not true and correct. According to the petitioner various remittances made by the petitioner was not given proper credit. 3. In view of availability of the statutory remedy provided under the SARFAESI Act, this Court was not inclined to entertain the writ petition. However, dispossession of the petitioner from the property was stayed, by virtue of the interim order issued on 11.2.2011, subject to condition of the petitioner remitting a sum of Rs.25,000/-. It is reported that the amount stipulated has already been paid. 4. Eventhough notice sent from this Court with hearing date noted as 28.2.2011 was served on the respondent, the respondent has not entered appearance till date nor had chosen to contest the matter. Learned counsel for the petitioner made a submission that the petitioner is W.P(C) No.4306 of 2011-K 3 ready and willing to pay off the actual amounts in default, after giving due credit to the payments already made. On that premise, the petitioner is seeking direction from this Court to permit regularisation of the account in question, undertaking that he will make payment of future monthly instalments, without any default. The above request is made subject to a specific undertaking that the petitioner is relinquishing all challenges raised against the proceedings initiated, subject to rectification of mistake if any in calculation of the amount of arrears. It is also undertaken that the petitioner is not intending to pursue any statutory remedy. 5. Since the respondent has not entered appearance, this Court is not in a position to ascertain whether there occurred any genuine mistake in giving credit to payments already made by the petitioner. However, considering the contentions and the limited reliefs sought for, I am of the view that the petitioner can be permitted to regularise the account, if the repayment period is not over till date. W.P(C) No.4306 of 2011-K 4 6. Accordingly, the writ petition is disposed of directing the respondent to keep in abeyance all further coercive steps for dispossession and sale of the property, if the petitioner remits the amounts overdue for payment (defaulted monthly instalments along with interest and expenses if any due) in 2 (two) equal monthly instalments, falling due on or before 30.6.2011 and on or before 30.7.2011. The petitioner should also make payment of regular instalments due for the respective months along with the said payment. In order to facilitate the petitioner to make payment of the amounts as stipulated above, the respondent is directed to furnish details of the account statement. If there is any mistake in such statement, the petitioner will be at liberty to point out the same with supporting evidence regarding payments already made, which will be corrected by the respondent. 7. If payment of the defaulted amounts is regularised as directed above, the respondent shall permit the petitioner to continue payment of future monthly W.P(C) No.4306 of 2011-K 5 instalments in accordance with the original schedule. 8. It is made clear that, on the event of default in payment of any one of the instalments as stipulated above or any future monthly instalments, the respondent will be free to proceed with further steps. It is made clear that the above relief is granted subject to condition that the petitioner is precluded from raising any subsequent challenge against the proceedings. C.K.ABDUL REHIM JUDGE ab