IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN WEDNESDAY, THE 28TH SEPTEMBER 2011 / 6TH ASWINA 1933 WA.No. 759 of 2010() -------------------- (AGAINST JUDGMENT DATED 10/02/2010 IN WP(C) NO.16618/09 ON THE FILE OF THIS HONOURABLE COURT) APPELLANT(S): PETITIONER ------------------------ 1. K.A.BALAN,S/O.APPU, AGED 50 YERAS, RESIDING AT "KRISHNA KRIPA",VIVEKANANDA ROAD, P.O.PUZHAKKAL, THRISSUR DISTRICT-680553 2. K.A.VIJAYAN, S/O.APPU,AGED 55 YERAS, -DO-,-DO- BY ADV. SRI.A.RANJITH NARAYANAN SRI.S.K.SAJU SMT.A.SIMI RESPONDENT(S): / RESPONDENTS --------------- 1. CANARA BANK,WEST PALACE ROAD, TRICHUR-680022,REP.BY ITS AUTHORIZED OFFICER. 2. STATE OF KERALA REP.BY THE SECRETARY TO GOVT.OF KERALA, INDUSTRIES DEPT., GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 3. STATE OF KERALA REP.BY THE SECRETARY TO GOVT. OF KERALA, FINANCE DEPT.GOVERNMENT SECRETARIAT, THIRUVANATHAPURAM. 4. TRICHUR HANDICRAFTS WORKER'S INDUSTRIAL (WORKSHOP) CO-OPOERATIVE SOCIETY LTD. NO.C IND(R)193, THRISSUR,REP.BY ITS PRESIDENT ADV. SRI.E.K.NANDAKUMAR FOR R1 SRI.A.K.JAYASANKAR NAMBIAR FOR R1 SRI.P.BENNY THOMAS FOR R1 SRI.P.GOPINATH FOR R1 SRI.P.SANTHOSH (PODUVAL) FOR R4 MS.T.B.REMANI, GOVERNMENT PLEADER THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 28/09/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.A.NO.759/2010 APPENDIX APPELLANT'S EXHIBITS ANNEXURE-A1 : COPY OF ORDER IN I.A.NO.3032/2010 DATED 10/03/2010. ANNEXURE-A2 : COPY OF AUCTION SALE NOTICE DATED 12/04/2010 ISSUED BY R1. ANNEXURE-A3 : COPY OF PAPER PUBLICATION OF SALE, EFFECTED IN MALAYALA MANORAMA, A VERNACULAR DAILY, ON 13/04/2010. ANNEXURE-A4 : COPY OF REPRESENTATION DATED 11/08/2011. ANNEXURE-A5 : COPY OF ACKNOWLEDGMENT DATED 16/08/2011. //TRUE COPY// PA TO JUDGE. jg C.N.RAMACHANDRAN NAIR & P.S.GOPINATHAN, JJ. .................................................................... W.A.No.759 of 2010 .................................................................... Dated this the 28th day of September, 2011. J U D G M E N T Ramachandran Nair, J. This Writ Appeal is filed against the judgment of the learned Single Judge declining to interfere with recovery proceedings initiated by the 1st respondent Bank against the appellants for recovery of arrears due from the 4th respondent Society for which appellants stood as guarantors by mortgage of property. The proceedings under challenge is initiated under the SARFAESI Act. The appellants' challenge on the ground that the property is agricultural land was turned down by the learned Single Judge holding that property mortgaged is building and land. 2. After hearing both sides, we do not find any merit in the contention of the appellants that they should be given time to approach the Government to take over the Society's liability because nothing obliges in law for the Government to take over the liabilities of the Society. However, since appellants have remitted Rs.3 lakhs, which is around 15% of the total demand, we feel the appellants can be granted two months' W.A.No.759/2010 2 time to sell the property by themselves and settle liability, failing which the Bank is free to sell the properties. Even though the Bank has taken over possession notionally, we give freedom to the appellants to advertise and negotiate the property for sale after informing purchaser about the charge of the Bank on the property and even to enter into agreement for sale of the property on condition of settlement of liability before execution of sale deed. It can be so arrayed that the purchaser can be directed to deposit the sale consideration to the Bank for adjustment towards the loan and then to release the title deed to the purchaser under agreement before execution of sale deed. If the appellants remit the arrears by sale of property or otherwise on or before 30/11/2011, there will be direction to the 1st respondent Bank to waive penal interest due for the loan and to allow settlement of payment of arrears with agreed rate of interest. This Writ Appeal is disposed of as above. (C.N.RAMACHANDRAN NAIR, JUDGE) (P.S.GOPINATHAN, JUDGE) jg