IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM THURSDAY, THE 23RD DECEMBER 2010 / 2ND POUSHA 1932 WP(C).No. 37808 of 2010(A) -------------------------- PETITIONER(S): --------------- K.P.CHANDRAN, FERRO PRINTER, S/O.PARIKADAN @ KUNJAN, AGED 51 YEARS, OFFICE OF THE DY.CHIEF ENGINEER, CONSTRUCTION/SOUTHERN RAILWAY, ERNAKULAM JUNCTION, R/AT "KELATH HOUSE", ENKKAD P.O., AGAMALA, WADAKKANCHERRY,PIN - 680 589 BY ADV. SMT.E.V.MOLY RESPONDENT(S): --------------- 1. HOUSING DEVELOPMENT FINANCE CORPORATION LIMITED, H D F C HOUSE, P.O.BOX 1667, RAVIPURAM JUNCTION, KOCHI, REPRESENTED BY ITS AUTHORISED OFFICER. 2. NATIONAL HOUSING BANK, MUMBAI LIFE BUILDING, 45, VEER NARIMAN ROAD, FORT MUMBAI - 400023 REPRESENTED BY ITS REGIONAL MANAGER/AUTHORISED OFFICER. ADV. SRI.K.K.CHANDRAN PILLAI, SENIOR ADVOCATE FOR R1 SRI.A.S.SAJUSH PAUL FOR R1 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 23/12/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: C.K. ABDUL REHIM, J ------------------------------- WP(C) NO. 37808 OF 2010 -------------------------------------- Dated this the 23rd day of December, 2010 JUDGMENT Petitioner is an employee in Southern railway. The issue pertains to proceedings initiated under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI Act) against the petitioner with respect to default committed in repayment of a housing loan availed from the first respondent Bank. It is stated that the petitioner is residing along with his wife and two children in a house which is partly completed construction. The amount in question was availed for the construction of the residence. According to the petitioner eventhough an amount of Rs.2,62,876/- was sanctioned the first respondent had disbursed only a sum of Rs.1,50,000/-. Since the roofing of the building could not be completed, the petitioner is using the same for residential purpose by installing temporary roofing. It is further stated that the 2 WP(C) No. 37808/2010 petitioner's wife is critically ill due to severe heart disease and was advised to undergo an emergent heart surgery. 2. Pursuant to steps initiated under the SARFAESI Act, the respondent had taken over possession of the residential property on 15.12.2010 and the petitioner as well as his family members are now evicted from the house. It is stated that the petitioner has no other place to reside and that the family is on the street. Hence this Writ Petition is filed seeking direction to permit re-occupation of the petitioner on the basis that the petitioner will pay off the defaulted amount in the loan account within a short time, and also seeking direction to the first respondent to permit regularisation of the loan account in question. 3. Heard, learned standing counsel appearing for the first respondent Bank. It is submitted that the loan in question was sanctioned in the year 2005 but still the petitioner failed to avail the loan and the amount as stated above was released payment only in the year 2006. The 3 WP(C) No. 37808/2010 petitioner had not cared to make payment of the monthly instalments after availing the loan and the arrears itself has now accrued to the tune of around Rs.1.80 lakhs. It is further submitted that the total balance outstanding is more than Rs.2.83 lakhs. 4. According to the first respondent, the dispossession was effected after issuing repeated demands and even the Advocate Commissioner appointed by the Chief Judicial Magistrate Court had visited the property on several occasions demanding the petitioner to hand over possession of the premises. Since the loan account is in chronic default and huge arrears is due, the first respondent Bank is not favouring to show indulgence in permitting to re-occupy the house. 5. It is noticed that the petitioner has not availed any of the statutory remedies against the proceedings initiated under the SARFAESI Act. I find no merit in the contentions raised warranting interference with the proceedings in any 4 WP(C) No. 37808/2010 manner. However, learned counsel for the petitioner submitted that the petitioner is not intending to pursue any of the remedies under the statute and that he is relinquishing all challenges against the proceedings. On the other hand a limited prayer is made to permit re- occupation of the building in question for the purpose of residence of himself and his family subject to condition of the petitioner remitting the entire amounts in default within a short period and further to direct the first respondent to regularise the account by permitting the petitioner for payment of the future monthly instalments on a regular basis. 6. Having considered the special factual circumstances prevailing in this case, I am of the view that eventhough interference on merits is not possible, some indulgence can be shown in permitting the petitioner to occupy the building for the purpose of residence of his family subject to stringent conditions to be imposed. 5 WP(C) No. 37808/2010 7. Under the above circumstances, the Writ Petition is disposed of directing the first respondent to permit the petitioner to occupy the residential building in the property which was already taken over possession, for the purpose of residence of himself and his family, without prejudice to the legal possession being retained by the first respondent Bank, subject to condition of the petitioner remitting a sum of Rs.50,000/- on or before 15.01.2011. 8. The petitioner shall pay the entire arrears in the loan account (defaulted instalments along with interest and expenses if any due) in 3 (three) equal monthly instalments, falling due on or before 15.02.2011 and on or before the 15th day of the two succeeding months thereafter. The petitioner shall also make payment of the regular instalment due with respect to the months concerned, along with the above said payments. 9. If payment of the defaulted amount is regularised as directed above, the respondent shall permit the 6 WP(C) No. 37808/2010 petitioner to continue payment of the future monthly instalments in accordance with the original schedule of repayment. 10. It is made clear that on the event of default in complying with any of the stipulations herein above contained, the respondent will be free to evict the petitioner or anybody else who is in occupation of the building, without recourse to any legal proceedings, if necessary with the assistance of police authorities having jurisdiction on the local area. 11. It is made clear that the petitioner is precluded from raising any challenge with respect to any such action for eviction by approaching this Court or any other legal Forum. C.K. ABDUL REHIM JUDGE dnc