IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM WEDNESDAY, THE 9TH FEBRUARY 2011 / 20TH MAGHA 1932 WP(C).No. 2648 of 2011(E) ------------------------- PETITIONER(S): --------------- P.K.JAGADHEESH, AGED 45 YEARS, S/O.RAMADAS, PROPRIETOR, RAMADAS TEXTILES & REDIMADES, NIRMALAGIRI P.O., AMBILADU, KUTHUPARAMBA, KANNUR-670701. BY ADV. SRI.M.RAMESH CHANDER SMT.K.A.SANJEETHA RESPONDENT(S): --------------- 1. RECOVERY OFFICER, DHANALAKSHMI BANK, BANK ROAD, KANNUR - 670 011. 2. DHANALAKSHMI BANK, BANK ROAD, KANNUR, REPRESENTED BY ITS CHIEF MANAGER - 670 011. ADV. SRI.VIVEK VARGHESE P.J. FOR R1-2 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 09/02/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: C.K.ABDUL REHIM, J --------------------------------------- W.P(C) No.2648 of 2011-E ---------------------------------------- Dated this the 9th day of February, 2011. J U D G M E N T Coercive steps initiated under the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI Act), consequent to default committed by the petitioner in repaying a loan availed from the 2nd respondent Bank, is the subject matter of challenge in this writ petition. 2. Ext.P1 is the notice issued under Rule 8(1) of the Security Interest (Enforcement) Rules 2002 intimating steps taken by the 1st respondent under Section 13(4). Contention of the petitioner is that the coercive steps are now being pursued without considering various payments effected and without properly giving credit to all such payments. It is also contended that the respondents are not taking into consideration of the offer made by the petitioner to regularise the account by paying the amounts in default. 3. Heard; counsel appearing for the respondents. It is stated that the loan was availed in the year 2008 and the petitioner had defaulted payment from the year 2009 onwards. W.P(C) No.2648 of 2011-E 2 Considering the fact that the business activity for which the loan was availed is remaining defunct and also considering the fact that there is no stock in trade available, the Bank is not in a position to revive the account and to permit the petitioner to continue payment of the instalments in accordance with the original schedule. Rather the contention is that the rescheduling of the loan account is not at all possible in view of the factual situation prevailing. 4. Considering the fact that the petitioner has not chosen to avail the remedy provided under Section 17(1) of the Act, this Court is not justified in interdicting with the proceedings, especially in view of the directives contained in the decision of the Hon'ble Supreme Court in United Bank of India V Sathyawati Tondon & others (2010(8) SCC 110). 5. Confronted with the above situation, learned counsel for the petitioner made an appeal to this Court to permit payment of the entire outstanding balance on the basis of an undertaking that the petitioner is relinquishing all challenges against the proceedings and also relinquishing rights if any to invoke the statutory remedy. Considering the limited prayer, I am of the view that indulgence can be shown in permitting the W.P(C) No.2648 of 2011-E 3 petitioner to pay off the entire liability in a phased manner, eventhough interference on merits is not desirable. 6. Therefore 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 petitioner remitting the entire balance outstanding along with interest and expenses if any due, in 8 (eight) equal monthly instalments, falling due on or before 28.2.2011 and on or before the last day of succeeding months. 7. It is made clear that on the event of default in payment of any one of the instalments, the respondents will be free to proceed with further steps. It is further made clear that the above relief is granted subject to the condition that the petitioner is precluded from raising any subsequent challenge against the proceedings. Sd/- C.K.ABDUL REHIM JUDGE ab