IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM WEDNESDAY, THE 5TH JANUARY 2011 / 15TH POUSHA 1932 WP(C).No. 34641 of 2010(E) --------------------------------------- PETITIONER(S): ------------------------ VARAMBAKATH DEVASSYA, S/O.JOSEPH, AGED 70 YEARS, ERUVESSI AMSOM, PAYYAVOOR DESOM, THALIPARAMBA TALUK, KANNUR DIST. BY ADV. SRI.U.BALAGANGADHARAN RESPONDENT(S): ------------------------------ 1. NORTH MALABAR GRAMIN BANK, REPRESENTED BY ITS MANAGER, PAYYAVUR BRANH, PAYYAVUR, THALIPARAMBA, KANNUR - 670633. 2. AUTHORISED SALE OFFICER, NORTHMALABAR GRAMIN BANK PAYYAVOR BRANCH,PAYYAVUR, THALIPARAMBA KANNUR – 670633. *ADDL. R3 IMPLEADED. 3. SHAJI KALLUVAYIL, 38 YEARS, S/O. CHACKO, PADIYOOR AMSOM AND DESOM, THALIPARAMBA TALUK, KANNUR DISTRICT. *ADDL. R3 IS IMPLEADED AS PER ORDER DT. 17.12.2010 IN IA. 17482/2010. R1 BY ADV. SRI.DEVAN RAMACHANDRAN , SC THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 05/01/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss C.K.ABDUL REHIM, J. ------------------------------------------- W.P.(C).No.34641 of 2010 ------------------------------------------- Dated this the 5th day of January, 2011 J U D G M E N T ---------------------- Petitioner is a guarantor with respect to a loan availed by his son from respondents 1 and 2. Consequent to default committed in repayment the Bank initiated proceedings under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI Act) and the immovable property belonging to the petitioner was already taken over possession, on the basis of Ext.P1 notice. 2. According to the petitioner, he had submitted Ext.P3 representation seeking time for payment of the balance outstanding. It is stated that the petitioner had already entered into an agreement with the additional 3rd respondent for sale of a portion of the property and that he is offering payment of the entire balance amount in the loan account as and when the sale consideration is received, on the basis of Ext.P2. Since the respondents are proceeding with coercive steps without considering such request, he is approaching this court. 3. On the basis of notice issued from this court, counsel entered appearance on behalf of additional 3rd respondent who is the proposed purchaser under Ext.P2 agreement. Learned counsel for additional 3rd respondent had endorsed that he had W.P.(C).34641/10 -2- executed Ext.P2 agreement and is ready and willing to purchase the property in accordance with the terms of the agreement. Learned counsel for respondents 1 and 2 had submitted that the total outstanding is more than Rs.6 lakhs and the proceedings initiated under the SARFAESI Act is at its fag end. It is stated that the respondent bank is taking steps for sale of the property in question. 4. It is noticed that the petitioner has got an effective alternative remedy as provided under the statute to challenge the proceedings initiated under the SARFAESI Act. Since the petitioner has not availed any such remedy, it is not proper for this court to interdict with recovery steps initiated under the SARFAESI Act, especially at a stage when the respondent Bank had already taken over possession of the property. 5. Having confronted with the above situation, learned counsel appearing for the petitioner submitted that the petitioner is not intending to pursue any statutory remedy and that he is relinquishing all challenges against the proceedings initiated. On the other hand, limited prayer is only to permit payment of the entire balance outstanding within a period of 8 months since the petitioner is getting considerable amounts on the basis of Ext.P2 agreement, towards sale consideration of the immovable property. 6. Having considered the facts and circumstances, as well as the contentions raised on both sides, I am of the view that W.P.(C).34641/10 -3- further coercive steps of recovery can be directed to be kept in abeyance in order to facilitate the petitioner to pay off the entire liability within a reasonable time, provided the petitioner makes payment of a portion of the amount in advance. 7. Therefore, the writ petition is disposed of directing the respondents 1 and 2 to keep in abeyance all further coercive steps initiated under the SARFAESI Act for a period of 6 (six) months from today. The above relief is granted subject to condition of the petitioner remitting a sum of Rs.1,00,000/- (Rupees one lakh only) on or before 15.1.2011 and making payment of the entire balance amount including interest and expenses if any due within the above said period of six months. 8. It is made clear that the respondent Bank will be at liberty to proceed with further steps on the basis of the possession already taken over in case there is any default on the part of the petitioner in complying with any of the conditions stipulated as above. 9. It is also made clear that the relief granted is subject to condition that the petitioner is precluded from raising any subsequent challenge against the proceedings. C.K.ABDUL REHIM, JUDGE. okb