IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM THURSDAY, THE 30TH SEPTEMBER 2010 / 8TH ASWINA 1932 WP(C).No. 24009 of 2010(A) ---------------------------------------- PETITIONER(S): ------------------------ 1. K. ASOKAN, AGED 40 YEARS, S/O.RAMACHANDRAN, KAITHACKAL HOUSE, T.B. JUNCTION, KOZHENCHERRY, PATHANAMTHITTA DISTRICT. 2. SOBHANA ASHOKAN, AGED 35 YEARS, W/O.K. ASOKAN, KAITHACKAL HOUSE, T.B. JUNCTION, KOZHENCHERRY, PATHANAMTHITTA DISTRICT. BY ADV. SRI.M.T. SURESHKUMAR, SRI.R.RANJITH. RESPONDENT(S): --------------------------- 1. THE BANK OF BARODA, REPRESENTED BY ITS REGIONAL MANAGER, KARIMPANANL ARCADE, EAST FORT, TRIVANDRUM-23. 2. THE AUTHORISED OFFICIAL (ASSISTANT GENERAL MANAGER), BANK OF BARODA, KOZHENCHERRY BRANCH, PATHANAMTHITTA DISTRICT. 3. THE DISTRICT COLLECTOR & DISTRICT MAGISTRATE, COLLECTORATE, PATHANAMTHITTA. R3 BY GOVT. PLEADER MR.MATHEW GOERGE VADEKKEL. R1 & R2 BY ADV. SRI.DEVAN RAMACHANDRAN, SRI.K.M.ANEESH. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 30/09/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs WP(C) NO. 24009/2010-A APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE NOTICE DATED 24/01/2008 ISSUED BY THE 2ND RESPONDENT TO THE PETITIONERS. EXT.P2: COPY OF THE NOTICE DATED 27/11/2008 ISSUED BY THE 3RD RESPONDENT TO THE PETITIONERS. EXT.P3: COPY OF THE NOTICE DATED 29/01/2009 ISSUED ON BEHALF OF THE 3RD RESPONDENT TO THE PETITIONERS. EXT.P4: COPY OF THE COMMUNICATION DATED 30/03/2010 ISSUED BY THE 3RD RESPONDENT. EXT.P5: COPY OF THE DISCHARGE CARD ISSUED FROM THE MEDICAL COLLEGE HOSPITAL, KOTTAYAM, IN FAVOUR OF THE 1ST PETITIONER. EXT.P6: COPY OF THE CERTIFICATE DATED 17/07/2010 ISSUED BY THE CIVIL SURGEON, DISTRICT HOSPITAL, KOZHENCHERRY. RESPONDENT'S EXHIBITS: NIL //TRUE COPY// P.S. TO JUDGE rs C.K.ABDUL REHIM, J. ------------------------------------------- W.P.(C).No.24009 of 2010 ------------------------------------------- Dated this the 30th day of September, 2010 J U D G M E N T ---------------------- Challenge in this writ petition is against proceedings initiated under Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI Act). The petitioner had availed a term loan from the 1st respondent Bank to the tune of Rs.1,50,000/- for construction of a residential building. When repayments in the loan account were defaulted, the 2nd respondent issued Ext.P1 notice under Section 13(2) of the SARFAESI Act. Since no payment was effected inspite of receipt of such demand, respondents 1 and 2 had invoked Section 14(1) and the District Magistrate was approached. Ext.P4 is an order issued by the District Magistrate directing the police authorities to afford protection and assistance for implementation of the order and for taking over possession of the immovable property, which is the secured asset. 2. According to the petitioner, the amount claimed by the respondents is not true and correct. It is further stated W.P.(C).24009/10-A -2- that the petitioner belongs to the lowest strata of the society and he is an Autorikshaw Driver by profession. Further, he is suffering from some chronic diseases for which he is undergoing prolonged treatment at the Medical College Hospital, Kottayam and at the District Hospital, Kozhencherry. Ext.P5 and P6 Medical Reports are produced in support of such claim. Hence the petitioner seeks interference of this court to restrain the coercive steps. 3. Considering the provisions contained in the SARFAESI Act, I am not inclined to interfere with the impugned proceedings, because the petitioner has not chosen to avail the statutory remedies. However, as a gesture of indulgence, when the writ petition came up for admission, this court directed the petitioner to make payment of a sum of Rs.50,000/-, which he had already remitted. 4. Learned counsel appearing for respondents 1 and 2 submitted that after crediting all payments, the balance outstanding will be around Rs.1.70 lakhs. It is also contended that the petitioner had committed consecutive defaults and the loan account is pending as a non-performing asset since the year 2007 onwards. W.P.(C).24009/10-A -3- 5. Having confronted with the above situation, learned counsel for the petitioner made an appeal to this court to permit him to pay off the entire liability within a reasonable time in instalments. Taking note of his ailment and the continued treatments undergone by him, eventhough interference on merits is not at all warranted, I am inclined to show indulgence in permitting him to pay off the liability within a reasonable time, in instalments. 6. Accordingly the writ petition is disposed of directing the respondents to keep in abeyance all further coercive steps for dispossession and sale of property, provided the petitioner remits the entire balance outstanding along with interest accruing in future, in 5 (five) equal monthly instalments falling due on or before 20.10.2010 and on or before the 20th day of the succeeding months. 7. It is also made clear that the petitioner will be at liberty to approach respondents 1 and 2 seeking waiver of interest/penal interest and expenses, to the possible extent, and if any such approach is made, the respondents will consider the same favourably. 8. It is further made clear that on the event of default in W.P.(C).24009/10-A -4- payment of any one of the instalments the respondents will be free to proceed with further steps of recovery which is initiated pursuant to Ext.P4 order and on such event the petitioner will be precluded from raising any challenge against such proceedings. C.K.ABDUL REHIM, JUDGE. okb