IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM TUESDAY, THE 31ST MAY 2011 / 10TH JYAISHTA 1933 WP(C).No. 13735 of 2011(N) ---------------------------------------- MC.53/2011 of CHIEF JUDICIAL MAGISTRATE COURT, THODUPUZHA .................... PETITIONER(S): ------------------------ 1. BIJU THOMAS, KURUVIKKATTU HOUSE, KUZHITHOLU P.O., IDUKKI DISTRICT. 2. THOMAS THOMAS, KURUVIKKATTU HOUSE, KUZHITHOLU P.O., IDUKKI DISTRICT. 3. THANKAMMA THOMAS, KURUVIKKATTU HOUSE, KUZHITHOLU P.O., IDUKKI DISTRICT. BY ADV. SRI.BIJU MARTIN RESPONDENT(S): -------------------------- ING VYSYA BANK LTD., PANAMPILLY NAGAR, ERNAKULAM, REPRESENTED BY ITS AUTHORIZED OFFICER, MR. KUMAR DAS MAILERUM, S/O. PERUMAL PILLAI MAILERUM, ZONAL RECOVERY MANAGER, ZONAL OFFICE, 'HARA' CHAMBERS, 22 KH ROAD, BANGALORE-560 027. BY ADV. SRI.R.S. KALKURA, SC., SRI.K.K.JOHN. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 31/05/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs C.K.ABDUL REHIM, J. ------------------------------------------- W.P.(C).No.13735 of 2011 ------------------------------------------- Dated this the 31st day of May, 2011 J U D G M E N T ---------------------- The petitioners jointly availed an agricultural term loan as well as a 'cash credit facility' from the respondent Bank by mortgaging immovable properties belonging to them. Consequent to default committed in repayment, the respondent had initiated proceedings under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI Act) and the Chief Judicial Magistrate Court was approached invoking Section 14(1). When an Advocate Commissioner was appointed to take over possession of the property, this writ petition is filed. 2. On the date when the writ petition came up for consideration, it was conceded that the property in question was already taken over possession. But it is stated that the petitioners were permitted to continue residence in the building situated therein on the basis of a specific request made by them with an offer to make payment of the arrears within a short period. By virtue of an interim order passed by this court on 23.5.2011, the status quo with respect to the residence of the petitioners was ordered to be continued. 3. In the counter affidavit filed on behalf of respondent W.P.(C).13735/11 -2- it is pointed out that when proceedings was initiated for sale of the property in question, one among the petitioners had approached this court in WP(C).No.9509/2008. In R1(a) judgment the sale proceedings initiated was directed to be kept in abeyance, subject to condition of the petitioner remitting 1/3rd of the amount on or before 14.3.2008. The petitioner therein was directed to make payment of the balance amount in 2 (two) equal monthly instalments payable on or before 15.5.2008 and on or before 15.6.2008. 4. It is evident that the petitioners have failed to take benefit of the indulgence already shown by this court through the above said judgment. It is further stated in the counter affidavit that the facility in question was availed in the year 2005 and the money availed from the Bank was utilised for purchasing property. But the petitioners failed to repay the amount in terms of the loan agreement and the account was declared as 'NPA' as early as in the year 2006. It is further stated that a sum of Rs.71,93,426.55/- is due from the petitioners as on 23.5.2011, along with interest due for the subsequent periods. Under the above mentioned circumstances the writ petition is not sustainable and the relief sought for could not be granted, is the contention. 5. Considering the rival contentions as stated above, I am W.P.(C).13735/11 -3- not inclined to entertain this writ petition in view of the fact that the petitioners have failed to avail the benevolence shown by this court on a earlier occasion. Further it is evident that the petitioners have not availed the statutory remedy provided under the SARFAESI Act. 6. However, learned counsel for petitioner made an appeal to this court to permit continued occupation of the residential house on the basis of an undertaking that the entire amounts due under the loan account will be cleared payment within a short period, in instalments. Such an appeal is made on the basis of specific undertaking that the petitioners are relinquishing all challenges raised against the proceedings and that they are not intending to pursue any statutory proceedings. 7. Considering the limited relief now sought for I am of the view that, if the petitioners make payment of the amounts due in instalments within a short period, the status quo with respect to physical possession of the house can be permitted to continue. 8. Accordingly the writ petition is disposed of directing the respondents to keep in abeyance all further steps for sale of the property and also any further steps for evicting the petitioners from the residence, subject to condition of the petitioners remitting the entire amounts due, under the loan account along with interest and expenses if any due in 5 (five) W.P.(C).13735/11 -4- equal monthly instalments falling due on or before 30.6.2011 and on or before the last day of the succeeding months. 9. It is made clear that on the event of default in payment of any one of the instalments the respondent will be at liberty to proceed with further steps and on such event the petitioners will be precluded from raising any subsequent challenge against such proceedings. C.K.ABDUL REHIM, JUDGE. okb