IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN TUESDAY, THE 31ST MARCH 2009 / 10TH CHAITHRA 1931 WP(C).No. 5755 of 2009(L) ------------------------- PETITIONER(S): --------------- JACOB VARGHESE, KOIPURAM HOUSE, THAZHAM NORTH, CHATHANNOOR, KOLLAM DIST. BY ADV. SRI.B.S.SURESH (CHIRAKKARA) RESPONDENT(S): --------------- 1. CHIEF MANAGER, STATE BANK OF TRAVANCORE, CHATHANNOOR BRANCH, CHATHANNOOR KOLLAM DIST. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA AT ERNAKULAM. R1 by SC SRI R S KALKURA R2 BY GP SRI K C SANTHOSH KUMAR THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 31/03/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOTTATHIL B RADHAKRISHNAN, J ........................................... WP(C).NO. 5755 of 2009 & I.A NO. 3397 OF 2009 ............................................ DATED THIS THE 31ST DAY OF MARCH, 2009 JUDGMENT The petitioner faces recovery proceedings under the SARFAESI Act, following a notice under Section 13(2) issued on 16.8.2008. There is a balance of Rs.6,23,768/- on a car loan on 31.7.2008 and Rs.3,90,266/- on housing loan as on 31.7.2008. 2. This writ petition is filed on the allegation that though action is taken under Section 14 of SARFAESI Act, no notice under Section 13(4) has been taken and therefore Debt Recovery Tribunal is not entertaining the application under Section 17 of that Act. Therefore on 20.2.2009, this court had directed Debt Recovery Tribunal to consider the securitization application in the light of what is stated in that interim order, since Section 17 procedure is provided against a measure taken and does not necessarily depend on any particular notice being issued under Section 13(4). Taking into consideration the total accruals outstanding including the fact that an amount of more than Rs.6,25,000/- is due under the car loan account, it was directed WP(C) 5755/2009 2 that the petitioner shall surrender the car to the bank since that is an hypothecated item of movable property. 3. Later I.A.3397 of 2009 is filed on the allegation that the bank manager was not having the facility to keep the vehicle and that the bank manager told the petitioner that he wanted more time to take custody of the vehicle. Though being the financial year end, the bank manager has not found time to come over and file a counter affidavit, the learned counsel for the bank states that as a matter of fact, the petitioner had informed the Assistant Manager of the bank that the vehicle is plying somewhere in Kottayam and he may require two days time to surrender the vehicle. Whatever that be, it is improper to continue any interim order that the petitioner had been enjoying from 20.2.2009, without further orders regarding custody of the vehicle. This court had also clarified in the order dated 20.2.2009 that Debt Recovery Tribunal will take into consideration the direction to surrender the vehicle in the matter of molding any interim relief that Debt Recovery Tribunal would grant. In the aforesaid situation, learned counsel for the petitioner even stated that his client would be prepared to pay off the entire WP(C) 5755/2009 3 outstandings in two weeks. I am not further inclined to compel the petitioner to do so in the wake of pending securitization application filed by him before Debt Recovery Tribunal. However, it has to be ensured that the vehicle is surrendered unless appropriate arrangements are made to secure the interest to that extent. For the aforesaid reasons, this writ petition and the captioned interlocutory order are ordered directing that if the petitioner does not deposit an amount of Rs.6,00,000/- with the bank within a period of ten days from now, he shall surrender the vehicle in question to the Station House Officer of Chathannoor Police Station, who will retain that in custody to be dealt with in terms of further directions that may be issued by Debt Recovery Tribunal in the securitization application filed by the petitioner. Debt Recovery Tribunal will note the contents of this judgment also for the purpose of molding relief in the proceedings pending at that end. Writ petition and IA ordered accordingly. THOTTATHIL B RADHAKRISHNAN, JUDGE lgk/31/3