IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM WEDNESDAY, THE 30TH MARCH 2011 / 9TH CHAITHRA 1933 WP(C).No. 7683 of 2011(I) -------------------------------- PETITIONER(S): -------------------- ACHANKUNJU A. THOMAS, QUARTERS NO.22, EPF STAFF QUARTERS, GANDHI NAGAR, KADAVANTHARA, ERNAKULAM. BY ADV. SRI.N.K.MOHANLAL RESPONDENT(S): --------------------- 1. AUTHORISED OFFICER, HOUSING DEVELOPMENT FINANCE CORPORATION LIMITED, RAVIPURAM, ERNAKULAM, KOCHI - 16. 2. HOUSING DEVELOPMENT FINANCE CORPORATION LIMITED, REPRESENTED BY ITS MANAGER, RAVIPURAM, ERNAKULAM, KOCHI - 16. R-1 SRI.K.K.CHANDRAN PILLAI, SENIOR ADVOCATE ADVS. SRI.TONY THOMAS (INCHIPARAMBIL) SRI.A.S.SAJUSH PAUL SRI.THOMAS JAMES MUNDACKAL SRI.BOBBY THOMAS SRI.M.L.JISHNU SMT.S.AMBILY THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 30/03/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: svs C.K.ABDUL REHIM, J. ------------------------------------------- W.P.(C).No.7683 of 2011 ------------------------------------------- Dated this the 30th day of March, 2011 J U D G M E N T ---------------------- Pursuant to proceedings initiated under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI Act) the immovable property, which is the secured asset as far the loan availed by the petitioner from the respondent Bank, was taken over possession. In this writ petition the petitioner inter alia seeks direction for restoration of possession and for payment of compensation to the tune of Rs.5 lakhs on the basis of an allegation that the respondents have violated the directions issued by this court in WP(C).No.27946/2010. 2. It is evident that WP(C). 27946/2010 was filed at a stage when the demand notice was issued against the petitioner under Section 13(2). The said writ petition was filed on the premise that the coercive steps were pursued without considering objection filed by the petitioner on receipt of demand under Section 13(2). Through the Judgment dt.13.9.2010, WP(C). No.27946/2010 was disposed of observing that, “if the respondent had received objections, as per Ext.P2, it will be considered and a reply thereof will be issued to the petitioner, before proceeding with further steps”. W.P.(C).7683/11 -2- 3. Contention of the petitioner is that the property in question was taken over possession without complying with the directions issued by this court, as stated above. On the other hand, learned standing counsel appearing for the respondent Bank submitted that the petitioner had never submitted any objection to Section 13(2) notice and that the Bank had not received any such objection, as claimed. It is further stated that the steps for dispossession was taken much after disposal of the earlier writ petition, since the petitioner had failed to make payment of any amounts or to take any earnest efforts to settle the account. 4. I do not find any material irregularity or infirmity with respect to the proceedings initiated under the SARFAESI Act. However, it is noticed that the petitioner had not chosen to avail the effective alternative remedy provided under Section 17(1) of the Act. Under such circumstances, I am not inclined to entertain this writ petition to consider any of the reliefs sought for. 5. However, learned counsel made a submission that the petitioner is ready and willing to make payment of the amounts remaining due in the loan account, and on such basis he is seeking for direction to permit repossession of the property. Standing counsel appearing for the respondent Bank submitted that the amounts in default (overdue) at present will be around Rs.1.50 lakhs and if the petitioner makes payment of the said W.P.(C).7683/11 -3- amount and continue payment of the future monthly instalments, repossession can be permitted. 6. Under the above mentioned circumstances, while dismissing the writ petition, it is made clear that if the petitioner makes payment of the entire amounts outstanding (defaulted monthly instalments along with interest and expenses if any due) within a period of one month from today, the respondents shall permit reoccupation of the property, subject to condition of the petitioner remitting the future monthly instalments in accordance with the original schedule of repayment. 7. It is made clear that on the event of failure to make payment of the amounts outstanding within the time stipulated above, or on the event of defaulting payment of the future instalments, the respondents will be free to proceed with further steps. 8. It is also made clear that I have not expressed any opinion regarding rights if any available to the petitioner to seek compensation from the respondents. C.K.ABDUL REHIM, JUDGE. okb