IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM FRIDAY, THE 1ST OCTOBER 2010 / 9TH ASWINA 1932 WP(C).No. 19218 of 2010(B) -------------------------- PETITIONER(S): --------------- GIREESH.V.S., AGED 35, S/O.SUKUMARAN, VAIKEKATTIL HOUSE, NEAR VAITHODI TEMPLE, THRIKKUR P.O., (VIA) OLLUR, THRISSUR. BY ADV. SRI.G.SREEKUMAR (CHELUR) SRI.K.RAVI (PARIYARATH) RESPONDENT(S): --------------- 1. THE STATE BANK OF INDIA, REP.BY ITS BRANCH MANAGER, IRINJALAKUDA BRANCH, THRISSUR DISTRICT - 680 121 2. THE AUTHORIZED OFFICER, STATE BANK OF INDIA, IRINJALAKUDA BRANCH, THRISSUR DISTRICT - 680 121 ADV. SRI.R.S.KALKURA FOR R1,2 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 01/10/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: C.K.ABDUL REHIM, J --------------------------- W.P(C) No.19218 of 2010-B ---------------------------- Dated this the 1st day of October, 2010. J U D G M E N T The petitioner availed a housing loan from the respondent Bank in the year 2009, to the tune of Rs.18,00,000/-. The residential house along with the property was mortgaged in favour of the Bank in order to secure the loan. According to the petitioner he had effected substantial repayments in the loan account. However, consequent to default committed, Ext.P2 notice was issued requesting to clear the arrears. It is further stated that subsequent to Ext.P2 notice, the respondents have published notice taking over possession of the property under Section 13(4) of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI Act). 2. According to the petitioner, the default happened only due to unforeseen financial stringencies and the petitioner is ready and willing to regularise the account by payment of the entire defaulted amounts. It is complained that inspite of such offer, the Bank is not permitting regularisation of the loan account. W.P(C) No.19218 of 2010-B 2 3. In the counter affidavit filed on behalf of respondents, it is stated that inspite of repeated requests, the petitioner had never taken any steps to regularise the account and therefore the account in question was categorised as 'NPA' with effect from 12.10.2009. It is further stated that the property in question is now occupied by another person, which according to the respondents is by virtue of a sale effected by the petitioner. Learned counsel for the respondents submitted that the steps under Section 13(4) has already been taken and a possession notice was already issued. 4. Considering the provisions contained in the SARFAESI Act, which enables the petitioner with an effective alternate remedy, I am not inclined to entertain the contentions on its merits in this writ petition. However, learned counsel for the petitioner submitted that the petitioner is ready and willing to pay off the entire defaulted amounts within a short time and that he is not proposing to raise any challenge against the proceedings initiated under the SARFAESI Act in future. He seeks permission to continue repayment in the loan account as per the original schedule, on the ground that the repayment period is for 214 months from the year 2009 onwards. 5. Eventhough the respondent Bank is not favouring W.P(C) No.19218 of 2010-B 3 regularisation, I am of the opinion that the alleged induction of a stranger, even assumed as correct, will not in any way cause prejudice to the Bank, as long as the property remains as the secured asset. With respect to the loan transaction, any alienation or other encumbrance even if created subsequent to the mortgage will not affect rights of the respondent Bank in proceeding against the property under the SARFAESI Act as well as in resorting to other remedies available under law. I take note of the specific contentions of the petitioner that he is not in any manner parted with ownership or possession of the property. Under such circumstances, I am of the opinion that some indulgence can be shown in the matter of permitting the petitioner to regularise the loan account. 6. In the result, the writ petition is disposed of directing the respondents to keep further coercive steps of recovery in abeyance, provided the petitioner remits the entire defaulted instalments along with interest and expenses if any due, in 2 (two) equal monthly instalments falling due on or before 15.11.2010 and on or before 15.12.2010. The petitioner shall also remit regular instalments due for the months of November and December 2010, along with such payments. If payments of defaulted amounts is cleared as per the W.P(C) No.19218 of 2010-B 4 stipulations contained above, the respondent shall permit the petitioner to continue payment of the future instalments in terms of the original schedule. 7. It is made clear that on the event of default in payment of any of the instalments, the respondents will be free to proceed with further steps on the basis of notices already issued. It is further made clear that the above relief is granted subject to the condition that the petitioner is precluded from raising any subsequent challenge against such proceedings, either before this Court or before any other forum. Sd/- C.K.ABDUL REHIM JUDGE //True Copy// P.A to Judge ab