IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM MONDAY, THE 29TH NOVEMBER 2010 / 8TH AGRAHAYANA 1932 WP(C).No. 30170 of 2010(U) --------------------------------------- PETITIONER: ------------------- M.SARASAN, S/O. MURALEEDHARAN, KRISHNAKRIPA, PUTHENKULAM P.O., KOLLAM. BY ADV. SRI.THYPARAMBIL THOMAS THOMAS. RESPONDENT: ---------------------- THE AUTHORISED OFFICER, CHIEF MANAGER, FEDERAL BANK LTD., REGIONAL OFFICE, STATUE, THIRUVANANTHAPURAM. BY ADV. SRI.GEORGE VARGHESE (MANACHIRACKEL). THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 29/11/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: prv. C.K.ABDUL REHIM, J. ------------------------------------------- W.P.(C).No.30170 of 2010 ------------------------------------------- Dated this the 29th day of November, 2010 J U D G M E N T ---------------------- The petitioner had availed 3 distinct financial assistances- a housing loan, a cash credit facility and a personal loan- from the respondent bank. Consequent to default committed in repayment of amounts due under the loan accounts, proceedings under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI Act) was initiated and the immovable property, which is the secured asset, was sought to be taken over possession. Invoking Section 14(1), the respondent had approached the Chief Judicial Magistrate Court, Kollam and an Advocate Commissioner was appointed to take over possession of the property. 2. According to the petitioner he had approached the bank seeking regularisation of the account by offering payment of the amounts in default. But without acceding to such request coercive steps of recovery for dispossessing the petitioner was being pursued. Hence this writ petition is filed. 3. Learned Standing Counsel appearing for the respondent bank pointed out that, against the proceedings W.P.(C).30170/10-U -2- initiated under the SARFAESI Act the petitioner had already approached the Debts Recovery Tribunal, invoking Section 17(1) of the Act. It is stated that the petitioner had failed to comply with the condition stipulated by he Tribunal while granting interim stay and consequently the securitisation application was dismissed. It is further submitted that the cash credit facility as well as the personal loan are remaining overdrawn and the period of those loans stands expired. With respect to the housing loan it is submitted that there is arrears to the tune of an amount of Rs.4 lakhs. 4. Considering the fact that the petitioner had already invoked statutory remedy challenging the proceedings initiated under the SARFAESI Act and also considering the fact that the petitioner had not taken any steps to get the securitisation application restored on the files of the Tribunal, I am of the view that it is not just and proper to interfere with the proceedings in this writ petition, filed under Article 226 of the Constitution of India. This is especially because of the dictum laid by the Hon'ble Supreme Court in United Bank of India Vs. Satyawati Tondon and others (2010 (8) SCC 110). 5. However, it is noticed that as a gesture of indulgence, when the writ petition came up for consideration, this court W.P.(C).30170/10-U -3- granted an interim stay against dispossession of the petitioner subject to condition of the petitioner remitting a sum of Rs.2,50,000/-. It is reported that the said amount was already paid. Learned counsel for the petitioner sought indulgence of this court in permitting regularisation of the housing loan on the promise that he will make payment of the entire amounts outstanding under the cash credit facility as well as under the personal loan account. He further undertakes that the arrears outstanding in the housing loan will be cleared payment within a short period. The above submission is made on the basis of an undertaking that the petitioner is relinquishing all challenges against the SARFAESI proceedings and that he is not further intending to pursue any statutory remedy in the matter. 6. Even though interference on merits is not desirable, considering the facts and circumstances I am of the view that some indulgence can be shown in the matter of permitting the petitioner to regularise the housing loan account. This is especially on consideration of the fact that repayment period of the housing loan is for 15 years. 7. Under the above circumstances the writ petition is disposed of directing the respondent to keep in abeyance further coercive steps for dispossession and sale of the secured assets, W.P.(C).30170/10-U -4- provided the petitioner remits the entire balance outstanding in the cash credit facility as well as in the personal loan (IPS) within a period of one month from today. The petitioner will also make payment of the amounts in default in the housing loan (defaulted monthly installments along with interest and expenses if any due) in 4(four) equal monthly installments falling due on or before 31.12.2010 and on or before the last day of the succeeding months. 8. If the amounts outstanding in the cash credit facility as well as the personal loan are paid in full and if payment of the defaulted amount is regularised in the housing loan account, then the respondent shall permit the petitioner to continue payment of future monthly installments in the housing loan account as per the original schedule of repayment. 9. It is made clear that on the event of default in payment of any of the installments, the respondent will be free to proceed with further steps pursuant to orders already issued by the Chief Judicial Magistrate Court, Kollam, and on such event the petitioner will be precluded from raising any subsequent challenge. C.K.ABDUL REHIM, JUDGE. okb