IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM WEDNESDAY, THE 20TH OCTOBER 2010 / 28TH ASWINA 1932 WP(C).No. 27515 of 2010(L) -------------------------------------- PETITIONER: ------------------- SANDHYA.S.NAIR, MADATHIL VEEDU, KARYAVATTOM, THIRUVANANTHAPURAM-695 581. BY ADV. SRI.ANIL K.NARENDRAN. RESPONDENTS: ------------------------ 1. STATE BANK OF TRAVANCORE, REGION II, ZONAL OFFICE, KSHB BUILDINGS SANTHI NAGAR, THIRUVANANTHAPURAM-695 001, REP.BY ITS CHIEF MANAGER (ADVANCES) & AUTHORIZED OFFICER. 2. THE BRANCH MANAGER, STATE BANK OF TRAVANCORE, KARYAVATTOM BRANCH, KARYAVATTOM.P.O., THIRUVANANTHAUPRAM-695 581. 3. P.S.SANTHOSH KUMAR, P.S.BHAVAN, KARYAVATTOM.P.O., THIRUVANANTHAPURAM-695 581. R1 & R2 BY SRI. R.S. KALKURA, S.C. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 20/10/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: prv. C.K.ABDUL REHIM, J. ------------------------------------------- W.P.(C).No.27515 of 2010 ------------------------------------------- Dated this the 20th day of October, 2010 J U D G M E N T ---------------------- The 3rd respondent is the former husband of the petitioner. Immovable property having an extent of 4 Ares (9.9 cents) covered under Ext.P1 settlement deed was in the joint name of the petitioner and the 3rd respondent. Subsequently the rights of the 3rd respondent in the property was released in favour of the petitioner by virtue of Ext.P2 deed, executed on 8.6.2007. As a consequence of the strained marital relationship the petitioner was compelled to approach the Family Court, Thiruvananthapuram seeking divorce. Claim was also raised for realising various amounts due from the 3rd respondent, to the tune of Rs.67,76,370/-. By virtue of Ext.P3 judgment, the Family Court allowed the divorce and decree was passed permitting the petitioner to realise the above said amount from the 3rd W.P.(C).27515/10-L -2- respondent. 2. The issue involved in this writ petition pertains to Medium Term Loan (Housing Loan) availed by the 3rd respondent from the 1st respondent Bank, during the year 2001. Consequent to default committed in repaying the amounts, respondents 1 and 2 had initiated proceedings under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI Act) against the property covered under Ext.P1 & P2 which is the secured asset with respect to the loan transaction. Ext.P4 is the copy of notice issued under Section 13(2). It is stated that on receipt of Ext.P4 the petitioner had approached the respondents 1 and 2 by submitting Ext.P5 representation. Contents of Ext.P5 is to the effect that, the petitioner was not having any direct knowledge regarding the loan transaction and that her free consent was not there while creating the mortgage. However, request was to postpone further coercive steps on the promise that the petitioner will pay off the liability in W.P.(C).27515/10-L -3- order to save the property from being sold. Ext.P6 is the reply issued by the 1st respondent considering the said request. It was informed that the Bank is unable to accede to any such request of the petitioner, since the loan account in question was treated as NPA as per the guidelines of the Reserve Bank of India and since the borrower has not cared to make payment of the amounts due even after receipt of notice under Section 13(2). 3. Eventhough various grounds are raised in this writ petition touching validity of the mortgage created, learned counsel for petitioner conceded that the petitioner is not intending to pursue such challenges, provided the petitioner is permitted to pay off the entire liability within a reasonable time, in installments, without prejudice to her rights to recover the amounts from the 3rd respondent. 4. Learned counsel for respondents 1 and 2, on the basis of instructions submitted that, the loan in question was availed as early as in the year 2001 and there was chronic default in repayments. The arrears outstanding W.P.(C).27515/10-L -4- payment is around Rs.13.18 lakhs, is the submission. It is noticed that as a gesture of indulgence, when the writ petition came up for consideration, this court directed the petitioner to remit a sum of Rs.3 lakhs. Admittedly the amount was remitted on 15.9.2010. 5. Considering the facts and circumstances, I am not at all inclined to interfere with the SARFAESI proceedings on the basis of the contentions, especially in view of the alternate remedy provided under the statute. However, I am of the opinion that indulgence can be shown in the matter of permitting the petitioner to pay off the entire liability within a reasonable period. 6. Accordingly the writ petition is disposed of directing the respondents 1 and 2 to keep further proceedings of recovery pursuant to Ext.P4 notice in abeyance, provided the petitioner pays the entire liability along with interest due thereon, in 4 equal monthly installments, falling due on or before 30.11.2010 and on or before the last day of the succeeding months. W.P.(C).27515/10-L -5- 7. In view of Ext.P2 release deed, respondents 1 and 2 are directed to release the title deeds and other documents kept in their custody pursuant to the mortgage created, to the petitioner, once the entire balance is cleared payment. 8. It is made clear that payment of amounts if any made by the petitioner will be without prejudice to her rights of the petitioner to enforce Ext.P3 judgment passed by the Family Court, against the 3rd respondent. 9. It is also made clear that on the event of default in payment of any of the amounts as directed above the respondents will be free to proceed with further steps of recovery and on such event the petitioner is precluded from raising any subsequent challenge. C.K.ABDUL REHIM, JUDGE. okb