IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON FRIDAY, THE 12TH MARCH 2010 / 21ST PHALGUNA 1931 WP(C).No. 7039 of 2010(D) ------------------------- PETITIONER: --------------- THOMAS MATHEW, S/O.ABRAHAM MATHAI, AGED 55 YEARS, PALATHOTTATHIL HOUSE, (JNJ HOUSE), UTHIMOOD P.O., RANNI, PATHANAMTHITTA. BY ADV. SRI.V.ANIL (K/1480/98) RESPONDENTS: --------------- 1. THE BRANCH MANAGER , STATE BANK OF INDIA, PATHANAMTHITTA. 2. THE AUTHORISED OFFICER, STATE BANK OF INDIA, PATHANAMTHITTA BRANCH, PATHANAMTHITTA. BY ADV. MR. K.K. CHANDRAN PILLAI, SC, SBI. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 12/03/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.R. RAMACHANDRA MENON, J. .............................................................................. W.P.(C) No.7039 OF 2010 ......................................................................... Dated this the 12th March, 2010 J U D G M E N T The petitioner has approached this Court challenging the steps taken by the respondent Bank under the SAFAESI Act for realisation of the amount stated as due from the petitioner under some loan transaction. The learned Counsel for the petitioner submits that there were two different loans; a housing loan of Rs.12 lakhs and a 'cash credit facility' which originally was of Rs.Five lakhs and subsequently enhanced to Rs. 20 lakh, creating security interest over the property in question. It is contended that because of some unforseen circumstances and sudden downfall in the business, the petitioner could not effect the repayment on time and that earnest efforts have been made to clear the liability by way of OTS by paying a sum of Rs. 14.4 lakhs and another sum of Rs.2,25,845/- payable as Salestax arrears which is stated as cleared by the respondent W.P.(C) No.7039 OF 2010 2 Bank, on behalf of the petitioner. 2. The learned Counsel for the respondent Bank, on instruction submits that there is absolutely no merit or bonafides in the Writ Petition and that, this is only an attempt to protract things further, after third or fourth round of litigation before this Court. 3. With regard to the sequence of events, it is submitted that when the petitioner turned to be a defaulter, the respondent Bank procoeeded with appropriate steps under the SARFAESI Act , the petitioner came up with a proposal to have 'private sale' of one of the properties. Extending a helping hand, the said property was released to the petitioner for an amount of Rs.24 lakhs as suggested by the petitioner, which was subsequently sold for Rs.19 lakhs and some payment was effected by the petitioner pursuant to private sale. Thereafter, the petitioner did not satisfy the commitment, under which circumstances, further steps were pursued by the respondent, when the petitioner approached this Court by filing W.P.(C) 24569 of 2008, which was disposed of granting one month's W.P.(C) No.7039 OF 2010 3 time to the petitioner to pursue further 'private sale', stated as being pursued to satisfy the liability to the respondent Bank. The said Writ Petition was filed by the petitioner and his brother whose property was also involved . But being aggrieved of the verdict passed by this Court, W.A.No. 1273 of 2009 was filed by the petitioner and his brother. Taking note of the specific plea raised from the part of the petitioners/appellants and also pursuant to the inteim order passed by the Division Bench in view of the marriage of the daughter of the petitioner scheduled to be held in the meanwhile, the possession of the property was given back to the petitioner. Eventhough it was only for a few weeks, the Bank permitted the petitioner to continue possession for nearly 2 ½ months, so as to facilitate 'private sale' of the property. Finally observing that the petitioners/appellants in the W.A. had not honoured the commitment, interference was declined and W.A was dismissed in October, 2009, simultaneously ordering to hand over possession back to the Bank and accordingly, further steps were pursued by the Bank causing the property to be sold in public auction, which is now W.P.(C) No.7039 OF 2010 4 under challenge again at the instance of the petitioner, stating that his father is ailing much and that the petitioner might be permitted to have his property saved on payment of amount as aforesaid , as part of the 'OTS' seeking to settle the entire loan transaction for a total sum of Rs. 30 lakhs, which, according to the respondent Bank is not at all acceptable . 4. The learned Counsel for the respondent Bank submits that the total outstanding liability as on date will cross Rs. 60 lakhs, out of which, the principal portion itself will constitute nearly Rs. 38 lakhs. Even at this stage , it is stated, that the Bank is ready and willing to extend maximum concession with regard to the interest payable by the petitioner. Despite conveying the position as above, the petitioner has not taken any earnest efforts to discharge at least the principal amount and to have the matter settled by paying reasonable interest. 5. It is also brought to the notice of this Court that at the time of relelasing the property earlier, the petitioner had undertaken that the 'Salestax' arrears would be cleared by the petitioner; more so in view of prior charge of the 'State' over the W.P.(C) No.7039 OF 2010 5 property by virtue of the statutory prescription under Section 26A of the KGST Act. Despite this, the petitioner did not satisfy the said amount as well . The recovery proceedings causing the property to be sold with the entire road frontage were subjected to challenge at the instance of the respondent Bank by filing W.P.(C) 21046 of 2009, which was disposed of by this Court directing the respondent Bank to clear the 'Salestax arrears ' and to have it realised from the defaulter. Accordingly, it is stated that the Bank has paid a total sum of Rs.2,25,845/- towards the 'Salestax arrears', which is to be satisfied by the petitioner in addition to the remaining liability under the loan. This being the position, the petitioner cannot dictate terms to the respondent Bank , seeking a Writ of Mandamus to have the matter settled by way of OTS for a total sum of Rs. 30 lakhs and that the remedy of the petitioner, if aggrieved of the steps taken by the respondent Bank invoking the machinery under the SARFAESI Act, is lying elsewhere. In the above facts and circumstancess this Court does not find any tenable ground to exercise the discretionary jurisdiction W.P.(C) No.7039 OF 2010 6 under Article 226 of the Constitution of India . Accordingly, interference is declined and the Writ Petition is dismissed. This, however, will not stand in the way of the petitioner from approaching the respondent Bank for having the matter amicably settled , which, of course will be at the hands of the respondent Bank to consider, if found fit and proper and to give effect to the same accordingly. P.R. RAMACHANDRA MENON, JUDGE. lk