IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM MONDAY, THE 31ST JANUARY 2011 / 11TH MAGHA 1932 WP(C).No. 33706 of 2010(K) ---------------------------------------- PETITIONER(S): ------------------------- 1. PURUSHOTHAMMAN PILLAI S/O.KRISHNAN PILLAI, THOTTAKATTIL PUTHEN VEEDU, ELOOKARA, MUPATHADAM, ALUVA P.O., KOCHI- 683 110. 2. SUDHA PURUSHOTHAMMAN, W/O.MR.PURUSHOTHAMMAN PILLAI THOTTAKATTIL PUTHEN VEEDU, ELOOKARA, MUPATHADAM, ALUVA P.O., KOCHI -683 110. BY ADV. SRI.K.R.VINOD, SRI.K.V.ARUN KUMAR. RESPONDENT(S): -------------------------- 1. THE MANAGER THE HDFC BANK, S.L. PLAZA, PALARIVATTOM, KOCHI -682 025. 2. THE HDFC BANK S.L. PLAZA, PALARIVATTOM, KOCHI- 682 025, REP. BY ITS MANAGER. R1 & R2 BY ADV. SRI.T.RAJESH, SC, HDFC BANK LTD. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 31/01/2011,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs C.K.ABDUL REHIM, J. ------------------------------------------- W.P.(C).No.33706 of 2010 ------------------------------------------- Dated this the 31st day of January, 2011 J U D G M E N T ---------------------- Petitioners are husband and wife. Issue involved in this writ petition pertains to proceedings initiated under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI Act). Consequent to default committed by the petitioners in repaying a housing loan availed from the respondent Bank, steps against the immovable property, which is the secured asset, was initiated. Invoking Section 14(1) the Chief Judicial Magistrate Court was approached by the respondent Bank and an Advocate Commissioner was appointed to take over possession of the property. 2. According to the petitioner, the default in payment was caused due to continued ill health of the 1st petitioner and subsequent collapse of the business. It is admitted that the petitioner had approached the Debts Recovery Tribunal through an application filed under Section 17(1) and an interim stay was granted by that Tribunal. But subsequently the stay was vacated since the petitioner failed to comply with the conditions imposed. According to the petitioner, the threat is with respect W.P.(C).33706/10 -2- to dispossession of their family from the residential building, which if happens, will cause irreparable prejudice and the coercive steps are now being pursued without acceding to the request to grant of sufficient time for payment of the amounts in default and for regularising the loan account. 3. Standing Counsel appearing for the respondent Bank submitted that the housing loan account including 2 'Top-up loans' which were sanctioned, remains in chronic default. It is stated that the amount in default itself is around Rs.4.04 lakhs. 4. Considering pendency of the matter before the Debts Recovery Tribunal, I am of the view that it is not at all justified on the part of this court to entertain a parallel proceedings. However, learned counsel for petitioners submitted that they are ready to withdraw the matter pending before the Debts Recovery Tribunal and that thy are relinquishing all challenges against the proceedings. On the other hand a limited prayer is raised to permit the petitioners to regularise the accounts by paying the amounts within a short period. 5. Considering the limited prayer sought for and also considering relinquishment of challenges, I am of the view that indulgence can be shown in permitting the petitioner to regularise the account reserving liberty to the respondent Bank to proceed with further steps in case of default. W.P.(C).33706/10 -3- 6. Therefore the writ petition is disposed of directing the respondents to keep in abeyance all further steps for dispossession and sale of the immovable property, provided the petitioner remits the entire amount in default (defaulted instalments along with interest and expenses if any due) in 2 (two) equal monthly instalments, falling due on or before 28.2.2011 and on or before 31.3.2011 along with payment of regular EMIs due for the respective months, and if the petitioner makes withdrawal of the matter pending before the DRT. 7. If payments of defaulted amounts is regularised as directed above, then the respondents shall permit the petitioner to continue payment of future monthly instalments in accordance with the original schedule of repayment. 8. It is made clear that on the event of default in payment of any one of the instalments as stipulated or any future monthly instalments, the respondents will be at liberty to proceed with further steps and on such event the petitioner will be precluded from raising any subsequent challenge against such proceedings. C.K.ABDUL REHIM, JUDGE. okb