IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM MONDAY, THE 14TH MARCH 2011 / 23RD PHALGUNA 1932 WP(C).No. 1605 of 2011(A) ------------------------- PETITIONER(S): --------------- 1. BUSHARA,W/O. MOHAMMED SULFI, SABARIYYATHU THEKKETHIL, AATHIKKATTUKULANGARA.P.O. ALAPPUZHA DISTRICT. 2. MOHAMMED SULFI, S/O.MEERA SAHIB, SABARIYYATHU THEKKETHIL, AATHIKKATTUKULANGARA.P.O. ALAPPUZHA DISTRICT. BY ADV. SRI.M.V.THAMBAN SRI.R.REJI SMT.THARA THAMBAN SRI.B.BIPIN SMT.REVATHY P.NAIR RESPONDENT(S): --------------- 1. THE FEDERAL BANK LTD., CHUNAKKARA BRANCH, REPRESENTED BY ITS MANAGER, CHUNAKKARA BRANCH, ALAPPUZHA DISTRICT-688001. 2. AUTHORIZED OFFICER/CHIEF MANAGER, THE FEDERAL BANK LTD., REGIONAL OFFICER, ALAPPUZHA, ALAPPUZHA DISTRICT-688001. ADV. SRI.MOHAN JACOB GEORGE FOR R1&2 SMT.P.V.PARVATHI FOR R1&2 SMT.REENA THOMAS FOR R1&2 SRI.L.RAM MOHAN FOR R1&2 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 14/03/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 1605 of 2011(A) APPENDIX PETITIONER'S EXHIBITS: EXT.P1 : COPY OF THE PLAINT IN O.S.NO.191/2006 EXT.P2: COPY OF THE WRITTEN STATEMENT IN O.S NO.191/2006 EXT.P3: COPY OF THE PROOF AFFIDAVIT FILED BY THE 1ST RESPONDENT EXT.P4: COPY OF THE NOTICE DTD.22.8.2009 EXT.P5: COPY OF THE NOTICE DTD.13.1.2011 EXT.P6: COPY OF THE RECEIPT DTD.10.2.2011 RESPONDENT'S EXHIBITS: NIL //TRUE COPY// P.A TO JUDGE ab C.K.ABDUL REHIM, J --------------------------------------- W.P(C) No.1605 of 2011-A ---------------------------------------- Dated this the 14th day of March, 2011. J U D G M E N T Proceedings initiated under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI Act), for realisation of amounts due in a housing loan account availed by the petitioners from the respondent Bank, is the subject matter of challenge in this writ petition. According to the petitioners, the respondents have filed a civil suit for realisation of the amounts, which had culminated in a decree. Without taking steps for execution of the decree, now the Bank is resorting to coercive steps against the immovable property, which is the secured asset, by invoking provisions contained under the SARFAESI Act. Hence the petitioners seek interference of this Court to restrain the steps taken under the SARFAESI Act. 2. Considering the settled legal position, it is evident that the petitioners could not raise any successful challenge W.P(C) No.1605 of 2011-A 2 against the proceedings under the SARFAESI Act, merely on the ground that the Bank had obtained a decree and on the ground that the debt now stands covered under a decree of the Civil Court. 3. However, it is noticed that, pursuant to an interim order issued by this Court, the petitioners had remitted a sum of Rs.2 lakhs. Learned counsel appearing for the respondent Bank on the basis of instructions received submitted that the balance outstanding after crediting the payment will come to around Rs.3.60 lakhs. 4. A further contention raised by the petitioners is that, by virtue of proceedings now initiated under the SARFAESI Act, the respondent Bank is taking steps to realise the interest at a rate of more than what was decreed in the civil suit, which according to them is not sustainable. It is made clear that since the debt now sought to be recovered is a decree debt, the respondent Bank will be entitled for realising interest only in terms of the decree. 5. Confronted with the above opinions, learned W.P(C) No.1605 of 2011-A 3 counsel for the petitioners made an undertaking that the petitioners are not intending to pursue any the statutory remedy and that they are relinquishing all challenges against the proceedings, subject to their rights to dispute correctness of the claim for interest as well as correctness of the total amount claimed. On the basis of such an undertaking, a limited prayer is made to this Court to permit payment of the balance amount due in instalments within a reasonable time. 6. Eventhough interference on merits is not proper, considering the effective alternative remedy provided under the statute, in view of the relinquishments made, I feel that the petitioners can be permitted to wipe of the entire liability within a short period, in instalments. 7. Accordingly, the writ petition is disposed of directing the respondents to keep in abeyance all further coercive steps, initiated under the SARFAESI Act, provided the petitioners remit the entire balance outstanding along with future interest and expenses if any due, in 5 (five) W.P(C) No.1605 of 2011-A 4 equal monthly instalments, falling due on or before 31.3.2011 and on or before the last day of succeeding months. 8. It is made clear that, as observed above, the respondents shall realise only the amount due under the terms of the decree passed by the civil court and the petitioners will be at liberty to point out dispute if any, regarding correctness of the amounts claimed. Needless to say that the respondent Bank should take a decision and intimate the petitioner about the result of such dispute. 9. It is made clear that on the event of default in payment of any one of the instalments, the respondent 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 petitioners are precluded from raising any subsequent challenge against such proceedings. C.K.ABDUL REHIM ab JUDGE