IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 37808 of 2010(A)
1. K.P.CHANDRAN, FERRO PRINTER,
... Petitioner
Vs
1. HOUSING DEVELOPMENT FINANCE
... Respondent
2. NATIONAL HOUSING BANK, MUMBAI LIFE
For Petitioner :SMT.E.V.MOLY
For Respondent :SRI.K.K.CHANDRAN PILLAI (SR.)
The Hon'ble MR. Justice C.K.ABDUL REHIM
Dated :23/12/2010
O R D E R
C.K. ABDUL REHIM, J
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WP(C) NO. 37808 OF 2010
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Dated this the 23rd day of December, 2010
JUDGMENT
Petitioner is an employee in Southern railway. The
issue pertains to proceedings initiated under the
Securitisation and Reconstruction of Financial Assets and
Enforcement of Security Interest Act, 2002 (SARFAESI
Act) against the petitioner with respect to default
committed in repayment of a housing loan availed from
the first respondent Bank. It is stated that the petitioner
is residing along with his wife and two children in a house
which is partly completed construction. The amount in
question was availed for the construction of the
residence. According to the petitioner eventhough an
amount of Rs.2,62,876/- was sanctioned the first
respondent had disbursed only a sum of Rs.1,50,000/-.
Since the roofing of the building could not be completed,
the petitioner is using the same for residential purpose by
installing temporary roofing. It is further stated that the
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petitioner’s wife is critically ill due to severe heart disease
and was advised to undergo an emergent heart surgery.
2. Pursuant to steps initiated under the SARFAESI
Act, the respondent had taken over possession of the
residential property on 15.12.2010 and the petitioner as
well as his family members are now evicted from the house.
It is stated that the petitioner has no other place to reside
and that the family is on the street. Hence this Writ Petition
is filed seeking direction to permit re-occupation of the
petitioner on the basis that the petitioner will pay off the
defaulted amount in the loan account within a short time,
and also seeking direction to the first respondent to permit
regularisation of the loan account in question.
3. Heard, learned standing counsel appearing for
the first respondent Bank. It is submitted that the loan in
question was sanctioned in the year 2005 but still the
petitioner failed to avail the loan and the amount as stated
above was released payment only in the year 2006. The
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petitioner had not cared to make payment of the monthly
instalments after availing the loan and the arrears itself has
now accrued to the tune of around Rs.1.80 lakhs. It is
further submitted that the total balance outstanding is more
than Rs.2.83 lakhs.
4. According to the first respondent, the
dispossession was effected after issuing repeated demands
and even the Advocate Commissioner appointed by the
Chief Judicial Magistrate Court had visited the property on
several occasions demanding the petitioner to hand over
possession of the premises. Since the loan account is in
chronic default and huge arrears is due, the first
respondent Bank is not favouring to show indulgence in
permitting to re-occupy the house.
5. It is noticed that the petitioner has not availed any
of the statutory remedies against the proceedings initiated
under the SARFAESI Act. I find no merit in the contentions
raised warranting interference with the proceedings in any
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manner. However, learned counsel for the petitioner
submitted that the petitioner is not intending to pursue any
of the remedies under the statute and that he is
relinquishing all challenges against the proceedings. On
the other hand a limited prayer is made to permit re-
occupation of the building in question for the purpose of
residence of himself and his family subject to condition of
the petitioner remitting the entire amounts in default within
a short period and further to direct the first respondent to
regularise the account by permitting the petitioner for
payment of the future monthly instalments on a regular
basis.
6. Having considered the special factual
circumstances prevailing in this case, I am of the view that
eventhough interference on merits is not possible, some
indulgence can be shown in permitting the petitioner to
occupy the building for the purpose of residence of his
family subject to stringent conditions to be imposed.
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7. Under the above circumstances, the Writ Petition
is disposed of directing the first respondent to permit the
petitioner to occupy the residential building in the property
which was already taken over possession, for the purpose of
residence of himself and his family, without prejudice to the
legal possession being retained by the first respondent
Bank, subject to condition of the petitioner remitting a sum
of Rs.50,000/- on or before 15.01.2011.
8. The petitioner shall pay the entire arrears in the
loan account (defaulted instalments along with interest and
expenses if any due) in 3 (three) equal monthly instalments,
falling due on or before 15.02.2011 and on or before the
15th day of the two succeeding months thereafter. The
petitioner shall also make payment of the regular instalment
due with respect to the months concerned, along with the
above said payments.
9. If payment of the defaulted amount is regularised
as directed above, the respondent shall permit the
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petitioner to continue payment of the future monthly
instalments in accordance with the original schedule of
repayment.
10. It is made clear that on the event of default in
complying with any of the stipulations herein above
contained, the respondent will be free to evict the petitioner
or anybody else who is in occupation of the building,
without recourse to any legal proceedings, if necessary with
the assistance of police authorities having jurisdiction on
the local area.
11. It is made clear that the petitioner is precluded
from raising any challenge with respect to any such action
for eviction by approaching this Court or any other legal
Forum.
C.K. ABDUL REHIM
JUDGE
dnc