IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN TUESDAY, THE 17TH FEBRUARY 2009 / 28TH MAGHA 1930 WP(C).No. 4366 of 2009(T) ------------------------- PETITIONER(S): --------------- 1. S.THANU PILLAI, S/O.SHANMUGHAN PILLAI, TC 38/2746, GOMATHY BHAVAN, PAZHAYASALAI, CHALAI, THIRUVANANTHAPURAM - 695 036. 2. GOMATHY AMMAL, W/O.SHANMUGHAN PILLAI, -DO- -DO- BY ADV. SRI.M.RAMASWAMY PILLAI SRI.P.M.JOSEPH RESPONDENT(S): --------------- 1. UNION OF INDIA, REP. BY SECRETARY, MINISTRY OF FINANCE, GOVT. OF INDIA, NEW DELHI. 2. THE AUTHORISED OFFICER, CANARA BANK, CHALAI BRANCH, THIRUVANANTHAPURAM. 3. CANARA BANK, CHALAI BRANCH, THIRUVANANTHAPURAM. REP. BY ITS BRANCH MANAGER. R2 AND R3 BY SC SRI GOPINATH MENON THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 17/02/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOTTATHIL B RADHAKRISHNAN, J ........................................... WP(C).NO. 4366 OF 2009 ............................................ DATED THIS THE 17 TH DAY OF FEBRUARY, 2009 JUDGMENT Petitioners have come to this court on receipt of Ext.P4 notice under Section 13(2) of SARFAESI Act. First petitioner is the son of second petitioner, an aged widow. It appears that a residential building is covered by the mortgage and second petitioner stays there. The only request that is made is that some time frame may be fixed and granted to enable the petitioners to pay off the outstandings. To demonstrate bonafides, the petitioners have placed on record, Ext.P1 in terms of which, it is stated that dues to another bank has also been settled. Petitioners stated that they would sell off yet another item of property or otherwise generate funds and pay off the outstandings without much delay. Advised by the ratio of the decision of Apex Court in Mardia Chemicals V. Union of India(2004(4) SCC 311), petitioners do not have any right to challenge the notice issued under Section 13(2). All that they have, is an opportunity to object to that notice and explain their stand to preclude further action under Section 13(4). If a measure is taken under Section 13(4), it is for petitioners to move the Debt Recovery Tribunal under Section 17 of SARFAESI Act. As if now, this is a fit case where the petitioners move the bank itself, following Ext.P4, for a negotiable settlement of the WP(C) 4366/2009 2 entire outstandings. It is stated that petitioners have met the General Manager and has made certain requests. The banking sector can necessarily modulate the total outstandings by recourse to appropriate understanding that could be arrived at, taking into consideration the totality of the transactions and viability impact issues. Therefore without issuing any restraint orders against further proceedings under SARFAESI Act, this writ petition is ordered directing that if the petitioners remit an amount of Rs.3,00,000/- on or before 5.3.2009, third respondent, through the competent authority, will consider the request of petitioners for a time frame to pay off the outstandings. Writ petition ordered accordingly. THOTTATHIL B RADHAKRISHNAN, JUDGE lgk/19/2