IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM THURSDAY, THE 15TH OCTOBER 2009 / 23RD ASWINA 1931 WP(C).No. 23753 of 2009(L) -------------------------- PETITIONER(S): --------------- VIJAYAN ASARI, `SISIRAM', VELLALIMBU VEEDU, PULLUVILA P.O., THIRUVANANTHAPURAM. BY ADVS. SRI.S.M.PREM SMT.K.P.SANTHI SMT.NISHA G.THARAMAL RESPONDENT(S): --------------- 1. THE FEDERAL BANK LTD., FEDERAL TOWERS, M.G.ROAD, THIRUVANANTHAPURAM. REPRESENTED BY ITS CHIEF MANAGER (AUTHORISED OFFICER). 2. SENIOR MANAGER, THE FEDERAL BANK LTD. BR.NEYYATTINKARA, SWEDESHABHIMANI COMPLEX, NEYYATTINKARA, THIRUVANANTHAPURAM. 3. JYOTHIKUMAR.V., JYOTHI BHAVAN, THADATHIKULAM, KANJIRAMKULAM P.O. 4. J.S.PADMA BAI, JYOTHI BHAVAN, THADATHIKULAM, KANJIRAMKULAM P.O. ADV. SRI.GEORGE VARGHESE (MANACHIRACKEL) THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 15/10/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: shg/ WP(C).No. 23753 of 2009(L) APPENDIX PETITIONER'S EXHIBITS: P1. COPY OF THE NOTICE DATED 25.07.2008 OF THE 2ND RESPONDENT. P2. COPY OF THE NOTICE DATED 23.09.2008 OF THE 2ND RESPONDENT. RESPONDENTS' EXHIBITS: NIL //TRUE COPY// P.A. TO JUDGE shg/ C.K. ABDUL REHIM, J. - - - - - - - - - - - - - - - - - - - - - - - W.P.(C)No. 23753 of 2009 - - - - - - - - - - - - - - - - - - - - - - - Dated this the 15th day of October, 2009 J U D G M E N T 1. Petitioner is the owner of a property having an extent of 15 cents situated at Kanjiramkulam Village in Neyyattinkara Taluk, wherein the petitioner is residing with his family, including his aged mother. According to the petitioner he was cheated by respondents 3 & 4 by persuading him to offer the property as security for loan availed by the 3rd respondent from the 2nd respondent Bank. It is only later it was revealed to the petitioner that the property is offered as security by way of mortgage for availing the loan, is the contention. However, on default in repayment of the loan amounts, the respondents 1 & 2 had initiated proceedings under the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI Act) and Exts.P1 & P2 notices were issued for taking over possession of the W.P.(C)No. 23753 of 2009 -2- property. According to the petitioner the primary security offered for availing the loan is the stock-in-trade such as tools, machineries etc. belonging to the business concern of the borrowers, and that the Bank is taking steps against the property of the petitioner without resorting to any steps against the borrowers as well as their assets. Therefore the petitioner is seeking directions to keep in abeyance the proceedings. 2. Heard learned standing counsel appearing for respondents 1 & 2, who on the basis of instructions submitted that, the total arrears outstanding in the loan account is about Rs.4,75,000/- and the mother of the petitioner had approached this court on an earlier occasion challenging the proceedings initiated against the property. It is pointed out that on the basis of provisions contained under Section 13 (11) of the SARFAESI Act, the contentions against the proceedings initiated against the guarantors, on the ground that the borrowers are not proceed against, is unsustainable. W.P.(C)No. 23753 of 2009 -3- 3. By virtue of an interim order dated 19.08.2009 the petitioner had deposited a sum of Rs.1,00,000/- towards the arrears. Learned counsel for the petitioner submits that the petitioner is ready and willing to pay off the entire liability within a reasonable time if payment in installments is permitted. 4. Having considered contentions on both sides and facts and circumstances of the case, I am of the opinion that some indulgence can be shown in the matter of permitting the petitioner to pay off the entire liability in installments, even though it is not desirable to consider any contentions pertaining to challenge against the SARFAESI proceedings. 5. In the result, the Writ Petition is disposed of directing the petitioner to make payment of an amount of Rs.75,000/- on or before 30.11.2009. The respondents 1 &2 are directed to keep in abeyance further steps till then. On payment of the above said amount respondents 1 & 2 shall furnish a balance statement to the petitioner after crediting all such payments and after considering waiver of interest W.P.(C)No. 23753 of 2009 -4- or default interest if any possible. The petitioner shall continue payment of the balance amount as intimated, in four (4) equal monthly installments starting from 31.12.2009 and on or before the last day of the succeeding months. 6. It is made clear that on the event of default in any of the installments as stipulated above, the respondents 1 & 2 are be at liberty to proceed with further steps pursuant to the notices already issued, and on such event the petitioner will be precluded from raising any further challenge against such proceeding either before this court or before any other forum. C.K. ABDUL REHIM JUDGE shg/