IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN MONDAY, THE 19TH JANUARY 2009 / 29TH POUSHA 1930 WP(C).No. 239 of 2009(C) ---------------------------------- PETITIONERS: -------------------- 1. MRS.ELIZABETH ALEXANDER, W/O.LATE T.K.ALEXANDER, THEKKVEETTIL HOUSE, VADAVATHUR P.O. KOTTAYAM. 2. MRS.SARA ELIZABETH ALEXANDER, THEKKEVEETTIL HOUSE, VADAVATHUR P.O.KOTTAYAM. 3. MR.BIJU MATHEW, THEKKEVEETTIL HOUSE, VADAVATHUR P.O. KOTTAYAM. BY ADV. SRI.DEVAN RAMACHANDRAN SRI.K.M.ANEESH RESPONDENTS: --------------------- 1. STATE BANK OF TRAVANCORE, S.M.E.BRANCH, SASTHRI ROAD, KOTTAYAM-68001,REPRESENTED BY ITS MANAGER. 2. THE CHIEF MANAGER, (AUTHORISED OFFICER) STATE BANK OF TRAVANCORE, S.M.E.BRANCH, SASTHRI ROAD, KOTTAYAM-68001. 3. MR.BIJU P.THAMPY,ADVOCATE, MUGHAL PALACE KOTTAYAM-686002. R1 AND R2 BY ADV. SRI.M.PATHROSE MATTHAI (SR.) SRI.SAJI VARGHESE THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 19/01/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOTTATHIL B. RADHAKRISHNAN, J. ~~~~~~~~~~~~~~~~~~~~~~~~~~ W.P.(C) No. 239 OF 2009 - P ~~~~~~~~~~~~~~~~~~~~~~~~~ Dated this the 19th day of January, 2009 JUDGMENT Third petitioner commenced commercial activity of running a Margin Free Supermarket. Petitioners 1 and 2 have provided collateral security for the loan availed by the third petitioner. In fact, he had availed a cash credit facility and a vehicle loan. The total outstanding grew and the first respondent through second respondent initiated proceedings under SARFAESI Act. Resultantly, the Chief Judicial Magistrate appointed a commissioner to effect dispossession. 2. The cash credit limit of Rs.10,00,000/- (Rupees Ten lakhs only) and the medium term loan for the vehicle for Rs.3,99,898/- (Rupees Three lakhs Ninety nine thousand Eight hundred and Ninety eight only) stood at a total outstanding of Rs.11,79,322/- (Rupees Eleven lakhs Seventy nine thousand Three hundred and Twenty two only), when Ext.P2 notice dated 13.8.2008 was issued under Section 13 (2) of the SARFAESI Act. 3. Following the payments, including the payment of Rs.1.5 lakhs following the interim order dated 2.1.2009, the balance amount due in the MTL (car loan) has come down to be less than Rs.1,78,000/- WP(C) No.239 of 2009 : 2 : (Rupees One lakh Seventy eight thousand only). Outstandings in the cash credit facility has come down to be around Rs.4,21,000/- (Rupees Four lakhs Twenty one thousand only). Thus, the total outstanding would be around Rs.6,25,000/- (Rupees Six lakhs Twenty five thousand only), apart from interest and other accruals that would legitimately come under the loan. 4. The plea projected and placed for consideration today on behalf of the petitioners is that the business activity in supermarket, with the passage of time, not only became highly competitive, but has been adversely affected by the depletion in the market trends and the petitioners may be given an opportunity to pay off the remaining outstandings to wipe off the loan and thereby avert the distress action. For such purpose, petitioners also give up their right to challenge the impugned proceedings before the DRT under Section 17 of the SARFAESI Act. 5. Taking into consideration total amount outstanding for recovery and the fact that the petitioners have made payment even after Ext.P2 notice issued under Section 13 (2) of the Act and have also complied the interim order issued by this Court, it is directed that if the WP(C) No.239 of 2009 : 3 : petitioners remit at the rate of Rs.1,00,000/- (Rupees One lakh only) per month payable on or before the 20th of every month commencing from February, 2009, and thereby wipe off the entire outstandings and accruals thereon, the impugned action will stand deferred and ultimately dropped. If there is default in remitting any of the installments as aforesaid, the benefit of this judgment will stand recalled automatically and the respondents will be at liberty, to forthwith proceed with dispossession of the petitioners. The petitioners will be at liberty to request the bank for a statement of accounts and also for any concession or reduction in the total outstandings. However, such plea for reduction would not be considered before remittance of three among the installments, as directed, are made. The writ petition is ordered accordingly. (THOTTATHIL B. RADHAKRISHNAN, JUDGE) KMD