IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON TUESDAY, THE 16TH MARCH 2010 / 25TH PHALGUNA 1931 WP(C).No. 6911 of 2010(L) ------------------------- PETITIONER: --------------- SRI.ANTONY, S/O.FRANCIS, DIVINE BOAT YARD, RAJU HOUSE, NEDUMTHOPPU, POOTHURA, ANJENGO, THIRUVANANTHAPURAM. BY ADV. SRI.SHAJIN S.HAMEED RESPONDENTS: --------------- 1. THE BRANCH MANAGER, STATE BANK OF TRAVANCORE, KADAKKAVOOR BRANCH, THIRUVANANTHAPURAM DISTRICT. 2. THE AUTHORIZED OFFICER, CHIEF MANAGER (ADVANCES), STATE BANK OF TRAVANCORE, KADAKKAVOOR BRANCH, THIRUVANANTHAPURAM. BY ADV. MR. R.S. KALKURA, SC. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 16/03/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.R. RAMACHANDRA MENON, J. .............................................................................. W.P.(C) No. 6911 OF 2010 ......................................................................... Dated this the 16th March, 2010 J U D G M E N T The petitioner had availed cash credit facility of Rs. Seven lakhs from the respondent Bank in November, 2005 by creating security interest over the property in question, which was availed for running a boat yard . But repayment could not be effected on time, as scheduled, which made him a defaulter and the Bank proceeded with coercive steps under the SARFAESI Act . The case of the petitioner is that because of the adverse circumstances resulted from 'Tsunami', and also in view of sudden downfall in the business, the petitioner could not honour his commitment. It is also the case of the petitioner that the Bank did not grant the benefit of 'OTS', which made him to approach this Court, particularly in view of the hasty steps stated as being pursued to take possession of the building. 2. During the pendency of the above Writ Petition, it is W.P.(C) No. 6911 OF 2010 2 stated that ab Advocate Commissioner had been appointed by the concerned C.J.M. pursuant to the order passed under Section 14 of the Act who took possession of the properpty, which hence is sought to be redelivered, as prayed for in the I.A No. 3711 of 2010, stating that the petitioner and his family have been virtually thrown to the street . 3. The learned Counsel for the respondent Bank , on instruction, submits that the averments and allegations raised in the Writ Petition are thoroughly wrong and misconceivced and do not reflect the true state of affairs . It is stated that the loan account was declared as 'NPA' much ago and the total outstanding liability is around Rs.9.95 lakhs. 4. The matter was originally posted before the 'Adalat' so as to pursue the scope of settlement, which was attended by the wife of the petitioner stating that the petitioner was in UAE. Finally, after negotiations, the matter was settled for a total sum of 7.5 lakhs, agreeing that the same would be cleared by way of two equal monthly installments, on or before the dates specified. It is stated that neither the petitioner nor his wife did choose to W.P.(C) No. 6911 OF 2010 3 honour the commitment in remitting the installments as above and it was in the said circumstances that the Bank was constrained to proceed with further steps leading to take possession of the premises including the residential building on 09.03.2010, availing the assistance of the Advocate Commisisoner appointed by the C.J.M. It is also pointed by the learned Counsel that the loan itself was availed by the petitioner on 21.11.2005 and this being the position, the reason stated by the defaulter putting the blame on the consequences resulted from 'Tsunami' occurred on the 26th December, 2004 cannot be of any significance or relevance. 5. The learned Counsel for the petitioner submits that the default was never wilful and that the petitioner has made earnest arrangements to clear the entire outstanding liability within no time. 6. Taking note of the persuasive submission made by the petitioner, though absoultely no default can be attributed on the part of the Bank in having proceeded with the coercive steps, this Court finds that one more opportunity can be given to the W.P.(C) No. 6911 OF 2010 4 petitioner to re-possess the building and to wipe out the entire liability within a reasonmable time. 7. Accoridngly, the petitioner is directed to deposit a sum of Rs.Three lakhs on or before 31.03.2010 upon which possesion of the building shall be re-conveyed by the respondents to the petitioner forthwith. The balance amount, subject to the condition as above, shall be cleared by way of two equal monthly installments, the first of which shall be paid on or before 30.04.2010 and the next one on or before 30.05.2010. The petitioner will also be bound to satisfy the demand of the Bank, if any made, with regard to the liability to pay further interest because of the 'admitted delay' in satisfying the liability as agreed in the Adalat proceedings and such other cost/ expenses, if any in connection with the filing of the present Writ Petition. Subject to the above, the recovery proceedings shall be kept in abeyance. It is also made clear that if any default is made in effecting the installments as above, the Bank will be at liberty to proceed with further steps for realisation of the entire amount in a lump sum by resorting to coercive steps from the stage where W.P.(C) No. 6911 OF 2010 5 it stands now. The Writ Petition is disposed of as above. P.R. RAMACHANDRA MENON, JUDGE. lk