IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM WEDNESDAY, THE 5TH JANUARY 2011 / 15TH POUSHA 1932 WP(C).No. 28782 of 2010(W) ----------------------------------------- PETITIONER(S): ------------------------ LISSY JOSE,W/O.JOSE PHILIP,AGED YEARS, LINIJI BHAVAN,RANDAMKUTTY,KODUMON.P.O, PATHANAMTHITTA DISTRICT. BY ADV. SRI.C.B.SREEKUMAR RESPONDENT(S): ------------------------- 1. AUTHORISED OFFICER/DEPUTY GENERAL MANAGER,THE FEDERAL BANK LTD,REGIONAL OFFICE, COLLEGE ROAD,PATHANAMTHITTA-689645. 2. THE FEDERAL BANK LTD,CHANDANAPPILLY BRANCH,PATHANAMTHITTA,REP.BY ITS BRANCH MANAGER. R1 & R2 BY ADV. SRI.GEORGE VARGHESE (MANACHIRACKEL) THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 05/01/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss C.K.ABDUL REHIM, J. ------------------------------------------- W.P.(C).No.28782 of 2010 ------------------------------------------- Dated this the 5th day of January, 2011 J U D G M E N T ---------------------- Petitioner is a co-obligant with respect to an 'Over Draft facility' availed by her husband from the respondent Bank. Consequent to default committed in repayment, the respondent Bank had initiated proceedings under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI Act) and the property wherein the petitioner is residing along with her children was proceeded against. The writ petition is filed challenging Ext.P2 notice issued under Rule 8(1) of the Security Interest (Enforcement) Rules. 2. It is submitted that subsequent to filing of writ petition, on the basis of proceedings initiated before the Chief Judicial Magistrate Court, an Advocate Commissioner appointed by that court had issued notices to the petitioner to give vacant possession of the property. 3. According to the petitioner, she had effected payment of considerable amounts and made representation before the respondent for rescheduling of the arrears. Since coercive steps were pursued without acceding to such requests, this writ petition is filed seeking direction to restrain the proceedings and to permit the petitioner to pay off the liability in a phased W.P.(C).28782/10- -2- manner. 4. It is noticed that the petitioner has not availed the statutory remedy as provided under the SARFAESI Act, and as such the challenge raised in this writ petition could not be entertained. However, as a gesture of indulgence, this court had stayed dispossession by virtue of an interim order issued on 15.12.2010, subject to condition of the petitioner paying a sum of Rs.50,000/- within two weeks thereof. It is submitted that the condition stipulated has already been complied with. 5. Learned counsel appearing for the respondent Bank submits that the loan account is in chronic default and the amount overdue for payment (defaulted amounts) itself will come to around Rs.1.22 lakhs. 6. Learned counsel appearing for the petitioner made an appeal to this court to the extent of granting a limited relief of permitting regularisation of the loan account, on the promise that the defaulted amount will be paid within a short period. The above submission is made based on an undertaking that the petitioner is relinquishing all the challenges against the proceedings initiated under the SARFAESI Act and that she is not intending to pursue any statutory remedies. 7. Having considered facts and circumstances, I am of the view that, eventhough interference on merits is not proper, indulgence can be shown in permitting the petitioner to W.P.(C).28782/10- -3- regularise the account. 8. The writ petition is therefore disposed of directing the respondents to keep in abeyance all further steps for dispossession and sale of the property in question, provided the petitioner remits the entire amount in default, (defaulted instalments along with interest and expenses if any due) in 3 (three) equal monthly instalments, falling due on or before 31.1.2011 and on or before the last day of the two succeeding months. The petitioner shall also make payment of the regular monthly instalments due for the respective months, along with the above said payments. 9. If payments of defaulted amounts is regularised as directed above, then the respondents shall permit the petitioner to continue payment of future monthly instalments in accordance with the original schedule of repayment. 10. It is made clear that on the event of default in payment of any one of the instalments as stipulated or any future monthly 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