IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON WEDNESDAY, THE 23RD JUNE 2010 / 2ND ASHADHA 1932 WP(C).No. 19416 of 2010(B) -------------------------- PETITIONER(S): --------------- 1. JANAKI, W/O.SADANANDAN, KADAKKAL PULLIPPARA PO, RESIDING AT JANAKI BHAVAN, DREAM NAGAR, H.NO.4, KANNIMOLCHERY, KAVANADU PO, KOLLAM DISTRICT -PIN - 691 003. 2. .SADANANDAN,RESIDING AT JANAKI BHAVAN, DREAM NAGAR, H.NO.4, KANNIMOLCHERY, KAVANADU PO, KOLLAM DISTRICT -PIN - 691 003. BY ADV. SRI.RAJESH P.NAIR RESPONDENT(S): --------------- 1. THE STATE BANK OF TRAVANCORE REP.BY ITS AUTHORISED OFFICER, CHIEF MANAGER (ADVANCES), REGION V, ZONAL OFFICE, THIRUVANANTHAPURAM. 2. THE MANAGER, STATE BANK OF TRAVANCORE, KADAKKAL BRANCH, KOLLAM. STANDING COUNSEL SRI.R.S.KALKURA THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 23/06/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.R.RAMACHANDRA MENON, J -------------------------------------------- WP(C) NO. 19416 OF 2010 -------------------------------------------- Dated this the 23rd day of June, 2010 JUDGMENT The petitioners who are wife and husband respectively, had borrowed certain amounts from the respondent Bank creating security interest over two items of properties. Steps to realize the due amount were under challenge in WP(C) 15823/2009, which led to Ext.P1 judgment, enabling the petitioner to have the claim for 'OTS' considered. The petitioner did not satisfy the condition and is again before this Court seeking for further indulgence to retain the possession of the properties and to stall the action that is being taken by the Bank for realisation of the amount. The learned counsel for the petitioner submits that, the entire outstanding amount, which is nearly Rs.9 lakhs, will be cleared without any further delay and that the prayer of the petitioner is only to give some breathing time. 2. The learned counsel appearing for the Bank submits that the Writ Petition is not maintainable under any circumstance and that this is nothing but an abuse of the process of the Court. With reference to the sequence of events, the learned counsel submits that, a cash credit facility of Rs.10 lakhs was availed by the petitioner on 31.10.2003. But the repayment was seldom made and because of the continuous default, the 2 WP(C) No. 19416/2010 Bank declared the account as 'NPA' and issued notice under Section 13 (2) of the SARFAESI Act on 09.11.2007. Further steps are pursued by approaching the concerned Chief Judicial Magistrate by filing petition under Section 14 of the SARFAESI Act for taking possession of the property, which actually consists of two different items; 1.40 ares with a residential building and the other 4.05 ares of vacant land. Being aggrieved of the steps taken by the Bank, the petitioner approached the DRT by filing Securitization Application, which by itself was belated and hence interference was declined. In the said circumstance, the petitioner approached this Court by filing WP(C) 15823/2009 on 08.06.2009 and after considering the persuasive submissions made by the petitioner, the coercive steps were intercepted and the petitioner was permitted to clear the liability in a phased manner as borne by Ext.P1 judgment passed on 22.06.2009. As per the said verdict, the petitioner was directed to deposit Rs.3 lakhs within one month; on which event, the Bank was directed to consider and pass appropriate orders on the representation preferred by the petitioner claiming the benefit of 'OTS'. It was also made clear that, in case of any failure from the part of the petitioner, the Bank was at liberty to proceed with steps for realisation of the entire amount in a lump sum. 3. The learned counsel for the Bank submits that, in spite of the specific direction given by this Court and the leniency shown by the Bank, 3 WP(C) No. 19416/2010 the petitioner did not make use of the opportunity and no amount was paid. Accordingly, the Bank proceeded with the steps to take possession of the property by approaching the concerned Chief Judicial Magistrate and proceeded to the spot on 29.10.2009. Met with the situation, the petitioners submitted that the entire liability will be cleared within 15 days and then, with all sense of bonafides, the respondent Bank spared taking possession of the 'residential premises' and took possession of only the 'vacant land' of 4.05 ares. Instead of honouring the commitment in clearing the liability within 15 days, the petitioner satisfied only a sum of Rs.4,00,000/- and thereafter filed I.A.14605/2010 in WP(C) 15823/2009 seeking for enlargement of time by 'six months' from the date of the judgment. The said I.A. came up for consideration before this Court on 20.01.2010 and observing that the time of 'six months' sought for had already expired, the said I.A. was dismissed on that day itself. It was thereafter, that the Advocate Commissioner appointed by the concerned Chief Judicial Magistrate issued Ext.P3 notice to the petitioners on 09.06.2010 letting them known as to the steps to take physical possession on 23.06.2010, i.e., today by 2.30 p.m.. Obviously Ext.P1 judgment was passed nearly one year back and nothing has turned out in the positive, but for the futile assurances made by the petitioners. 4. In the above facts and circumstances, this Court finds that 4 WP(C) No. 19416/2010 there is absolutely no merit or bonafides in the contentions raised from the part of the petitioners. Interference is declined and the Writ Petition is dismissed; however reluctantly refraining from ordering any cost. P.R.RAMACHANDRA MENON JUDGE dnc