IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM FRIDAY, THE 27TH MAY 2011 / 6TH JYAISHTA 1933 WP(C).No. 11586 of 2011(W) ----------------------------------------- CMP.291/2011 OF CHIEF JUDICIAL MAGISTRATE COURT, KOZHIKODE .................... PETITIONER(S): ----------------------- 1. ASHOKAN. K., S/O. VELLAN, ANNANKOTTACHALIL HOUSE, MATTANODE POST, PERAMBRA, KOZHIKODE DISTRICT, PIN-673 527. 2. GIREESH. K., S/O. VELLAN, CHALIL HOUSE, -DO -DO- BY ADV. SRI.K.P.SUDHEER, SRI.SUMODH MADHAVAN NAIR. RESPONDENT(S): ------------------------- 1. THE DEBTS RECOVERY TRIBUNAL ERNAKULAM, KOCHI-36, REPRESENTED BY ITS REGISTRAR. 2. AIG HOME FINANCE INDIA LTD., 1ST FLOOR, AARPEES ARCADE, (YMCA ROAD), YOUNG MEN'S CHRISTIAN ASSOCIATION ROAD, CALICUT, PIN-673 001, REPRESENTED BY ITS AUTHORISED OFFICER. BY ADV. SRI.RAJESH THOMAS. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 27/05/2011,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs C.K.ABDUL REHIM, J. ------------------------------------------- W.P.(C).No.11586 of 2011 ------------------------------------------- Dated this the 27th day of May, 2011 J U D G M E N T ---------------------- Consequent to default committed by the petitioners in repaying a housing loan availed by the petitioners from the 2nd respondent, proceedings under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI Act) was initiated. On invoking Section 14(1) the Chief Judicial Magistrate Court was approached and an Advocate Commissioner was appointed to take over possession of the immovable property, which is the secured asset. 2. Contention of the petitioners is that the coercive steps were initiated without acceding to the request made by them to permit regularisation of the account, on the basis of an offer for payment of the amounts in default. 3. Learned standing counsel appearing for the 2nd respondent submits that the petitioners have defaulted payment of consecutive instalments and the loan account is remaining in chronic default. It is stated that the W.P.(C).11586/11 -2- proceedings under the SARFAESI Act was pursued after issuing notice as contemplated under the relevant provisions. 4. Considering the effective remedy available under Section 17(1), this court may not be justified in interfering with the proceedings. However, learned counsel appearing for the petitioner made a submission that the loan in question was availed only in the year 2006 and the period of repayment is extending for 15 years. He makes an appeal to this court to permit the petitioners to regularise the account by paying the amounts in default, on the basis of a specific undertaking that the petitioners are relinquishing all challenges and also relinquishing rights if any available for invoking statutory remedy. 5. It is noticed that by virtue of an interim order passed by this court on 8.4.2011 the petitioners had remitted a sum of Rs.1 lakh. According to counsel for the 2nd respondent the amounts overdue for payment (defaulted amount) will come around Rs.63,000/-. Eventhough interference on merits is not warranted, I am of the view that the petitioners can be permitted to regularise the account in view of relinquishment of the challenges and also in view of the fact that the repayment period is for 15 years. W.P.(C).11586/11 -3- 6. Accordingly, the writ petition is disposed of directing the respondents to keep in abeyance all further coercive steps for dispossession and sale of the property subject to condition of the petitioners remitting the entire arrears in default (defaulted monthly instalments along with interest and expenses if any due) on or before 30.6.2011, along with payment of the regular monthly instalments due for the month of June 2011. 7. If payment of defaulted amounts is regularised as directed above, then the respondents shall permit the petitioners to continue payment of future monthly instalments in accordance with the original schedule of repayment. 8. It is made clear that on the event of default in payment of any one of the instalments, the respondents will be at liberty to proceed with further steps and on such event the petitioner will be precluded from raising any subsequent challenge against such proceedings. C.K.ABDUL REHIM, JUDGE. okb