IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON WEDNESDAY, THE 3RD JUNE 2009 / 13TH JYAISHTA 1931 WP(C).No. 11181 of 2009(P) -------------------------- (OA.242/2001 of DEBT RECOVERY TRIBUNAL, ERNAKULAM) PETITIONER: --------------- M/S.ENARC BUILDERS PVT.LTD., MAHESWARI BUILDINGS, M.G.ROAD, THRISSUR, REP.BY ITS MANAGING DIRECTOR. BY ADV. SRI.K.M.SATHYANATHA MENON RESPONDENTS --------------- 1. THE HOUSING & URBAN DEVELOPMENT CORPORATION LTD., (HUDCO), HUDCO BHAVAN, INDIAN HABITAT CENTRE, LODHI ROAD, NEW DELHI-110 003. 2. THE DEBT RECOVERY OFFICER, DEBT RECOVERY TRIBUNAL, ERNAKULAM. R1 BY ADV. SRI.K.R.KURUP, SC. BY ADV. SRI.C.R.SYAMKUMAR THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 03/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.R. RAMACHANDRA MENON, J. ........................................................................ W.P.(C) No. 11181 OF 2009 ......................................................................... Dated this the 3rd June, 2009 J U D G M E N T The petitioner, who is doing business as a Builder, had availed a loan from the first respondent Bank, which however, could not be repaid on time. The first respondent filed O.A.No. 242 of 2001 before the DRT, Ernakulam, which led to the final order dated 09.01.2007 as noted below: “In the result the applicant is given final order allowing it to recover the sum of Rs.93,40,752.40/- with interest thereon @ 20.50% per annum with quarterly rest from 1.08.2001 to 17.08.2001 and thereafter @ 13% p.a. from the date of this order and subsequently 12% p.a till realization and also its costs from the defendant jointly and severally and by sale of A to D schedule properties. The applicant shall credit Rs. 40 lakhs on 3.7.2002 and Rs,.20 lakhs on 11.04.2005 towards the aforesaid amount.” W.P.(C) No. 11181 OF 2009 2 Pursuant to the above verdict, further steps were taken by the first respondent for realisation of the amount due, which is sought to be intercepted by filing the above Writ Petition, on many a ground. 2. When the matter came up for admission before this Court on 03.04.2009, it was submitted from the part of the petitioner that the petitioner was ready and willing to effect pro rata payment and if the first respondent was prepared to release the proportionate extent of property on pro rata basis, necessary sales could be effected by the petitioner generating funds from the prospective customers and that the same would be paid to the first respondent, so as to wipe out the liability. In the said circumstances, an interim order was passed by this Court on 03.04.2009 as follows: “Post on 28.05.2009. If any of the vendees of the petitioner remits pro rata amounts to the first respondent, the same will be received by HUDCO to the satisfaction of the loan and in such event, pro rata release from the attachment could also be effected by issuance W.P.(C) No. 11181 OF 2009 3 of NOC for registering the title deeds for the individual flats . This order will be worked out only with the junction of the petitioner and the HUDCO will not incur any liability against any of the vendees.” 3. The first respondent after considering the relevant facts and figures has reportedly filed a statement dated 02.06.2009 pointing out that the first respondent is amenable to the suggestion made by the petitioner and that in order to enable the first respondent to release the property on a pro rata basis, a minimum pro rata remittance at the rate of Rs.20 lakhs, every two months, has necessarily to be made and further that the outstanding liability as aforesaid shall be cleared on or before 31.12.2009. 4. Heard both the sides. 5. The learned counsel for the petitioner submits that the petitioner is very much ready and willing to accept the above terms. The only point now brought to the consideration of this Court is that the petitioner, during the pendency of the proceedings has effected a deposit of Rs.40 lakhs. The learned W.P.(C) No. 11181 OF 2009 4 counsel for the petitioner submits that, out of the above, remittance by way of Rs.10 lakhs was made by the petitioner before passing the interim order and another sum of Rs.10 lakhs was made after passing the interim order. The learned counsel for the petitioner submits that by virtue of remittance, as above, especially in view of acceptance of the proposal from the part of the first respondent that pro rata release of the property could be made, such pro-rata release is to be effected by the first respondent. 6. Another aspect pointed out by the learned counsel for the petitioner is that S.T.No.197 of 2004 was filed before the Addl.C.J.M. Court, Thiruvananthapuram against the petitioner, in respect of the offence under Section 138 of the N.I.Act, where the matter is still pending. Challenging the sustainability of the above proceedings, the petitioner approached this Court by filing Crl.M.C. 24 of 2006 and during the course of the above proceedings, it was brought to the notice of the Court that the matter was settled, under which circumstances, Ext.P2 verdict was passed by this Court observing that the said Criminal case, W.P.(C) No. 11181 OF 2009 5 stated as pending before the Addl. C.J.M. Court, Thiruvananthapuram could be settled on the basis of the settlement arrived at between the parties. The learned counsel further submits that now, in view of the settlement arrived at between the parties, enabling the petitioner to remit pro rata payment with liberty to have pro rata release of the property, necessary directions are to be issued so as to keep the proceedings pending before the Criminal Court as well as recovery proceedings pending before the DRT in abeyance. 7. After considering the facts and figures, particularly in view of the consensus arrived at between the parties putting an end to the point of dispute, the petitioner is directed to effect pro rata payment of Rs.20 lakhs each every two months, for facilitating pro rata release of the property, ensuring that the entire liability be wiped out by 31.12.2009. The first respondent is also directed to effect pro rata release of the property as agreed. It is also made clear that till finalisation of the proceedings as above, the proceedings now pending before the Addl. C.J.M. Court, Thiruvananthapuram in S.T. No. 197 of 2004 W.P.(C) No. 11181 OF 2009 6 and the recovery proceedings against the petitioner pending before the DRT, Ernakulam shall be kept in abeyance. It is further made clear that the right of the petitioner to have the accounts verified and to have it in conformity with the directions given by the DRT as per the final order dated 09.01.2007 is left open. The Writ Petition is disposed of as above. P.R. RAMACHANDRA MENON, JUDGE. lk