IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM TUESDAY, THE 5TH OCTOBER 2010 / 13TH ASWINA 1932 WP(C).No. 18518 of 2010(L) --------------------------------------- PETITIONER(S): ------------------------ K.K. BALAKRISHNAN, PWD CONTRACTOR, RESIDING AT KATHARAM, V.O. ROAD, VADAKARA. BY ADVS. SRI.C.VATHSALAN SRI.K.RAKESH ROSHAN SMT.THUSHARA.V RESPONDENT(S): -------------------------- 1. THE MANAGER, SOUTH INDIAN BANK, BADAGARA BRANCH, P.O. VADAKARA, KOZHIKODE - 673 101. 2. THE CHIEF MANAGER, AUTHORISED OFFICER, SOUTH INDIAN BANK, REGIONAL OFFICE, KOZHIKODE, P.B. NO. 933, CHAKKORATHUKULAM, WEST HILL.P.O, KOZHIKODE DISTRICT, PIN - 673 005. BY ADV. SRI.K.K.JOHN,SC FOR SOUTH INDIAN BANK THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 05/10/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sts C. K. ABDUL REHIM, J. =~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~= W.P.(C) No. 18518 of 2010 =~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~= Dated this the 5th day of October, 2010 JUDGMENT Petitioner availed Over Draft facility to the tune of Rs.33 lakhs from the respondent Bank for the purpose of execution of civil contract works undertaken by him. Immovable property belonging to him was mortgaged for securing the loan. Consequent to default committed in repayment of amounts in terms of the loan agreement, the respondents initiated proceedings under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI Act). Ext.P1 is the notice issued under section 13(2) of the SARFAESI Act. 2. It is stated that on receipt of Ext.P1, the petitioner submitted a letter to the 1st respondent, as per Ext.P2, requesting time to pay off the balance amount and also requesting waiver of penal interest and other charges, to the possible extent. It is apprehended that without W.P.(C) No. 18518/2010 2 considering Ext.P2 request, coercive steps will be initiated for taking over possession of the property in question. 3. In a statement filed by the respondents it is mentioned that apart from the Over Draft facility, the petitioner had availed a housing loan to the tune of Rs.7.8 lakhs. It is mentioned that the proceedings were initiated under the SARFAESI Act, demanding payment of total arrears of Rs.42,84,158.88. But it is admitted that the petitioner had effected substantial payment of Rs.24,09,000/- as on 24-4-2010 and that the petitioner had promised to clear off the outstanding balance within a short time. But in spite of such offer, the petitioner has not taken any effective steps to wipe off the liability, is the contention. It is submitted that actions contemplated under section 13 (4) is proposed to be pursued. It is also stated that the petitioner had never submitted any request as per Ext.P2, as alleged in the writ petition. 4. The proceedings under the SARFAESI Act is only at the stage of issuing notice under section 13(2). Effective W.P.(C) No. 18518/2010 3 alternate remedy is available to the petitioner to raise objections against such proceedings. Further, if any steps are pursued under section 13(4), the petitioner has got an effective remedy by way of appeal. Under such circumstances, the challenge raised in this writ petition could not be entertained on its merits. 5. However, as a gesture of indulgence, when the writ petition came up for consideration, this Court directed to maintain status quo for a period of two weeks subject to condition of the petitioner making payment of a sum of Rs.3 lakhs. The petitioner had effected payment of the said amount, at a belated stage. 6. Having considered the facts and circumstances, I am of the opinion that the request of the petitioner for granting time for paying of the entire liability can be considered favourably. Even though interference on merits is not possible, indulgence can be shown to the petitioner in permitting him to pay off the entire liability within a short period in instalments. W.P.(C) No. 18518/2010 4 7. Accordingly, the writ petition is disposed of directing the respondents to keep in abeyance further coercive steps pursuant to the notice already issued, provided the petitioner remits the entire balance due in 6 (six) equal monthly instalments, falling due on or before 30- 10-2010 and on or before the last day of every succeeding months. 8. It is made clear that on the event of default in payment of any one of the instalments, the respondents will be free to proceed with further steps pursuant to the notice already issued. It is also made clear that the above relief granted is subject to condition that petitioner is precluded from raising any further challenge against such proceedings. C. K. ABDUL REHIM, JUDGE. mn.