IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 239 of 2009(C)
1. MRS.ELIZABETH ALEXANDER, W/O.LATE
... Petitioner
2. MRS.SARA ELIZABETH ALEXANDER,
3. MR.BIJU MATHEW, THEKKEVEETTIL HOUSE,
Vs
1. STATE BANK OF TRAVANCORE, S.M.E.BRANCH,
... Respondent
2. THE CHIEF MANAGER, (AUTHORISED OFFICER)
3. MR.BIJU P.THAMPY,ADVOCATE, MUGHAL PALACE
For Petitioner :SRI.DEVAN RAMACHANDRAN
For Respondent :SRI.M.PATHROSE MATTHAI (SR.)
The Hon'ble MR. Justice THOTTATHIL B.RADHAKRISHNAN
Dated :19/01/2009
O R D E R
THOTTATHIL B. RADHAKRISHNAN, J.
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W.P.(C) No. 239 OF 2009 - P
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Dated this the 19th day of January, 2009
JUDGMENT
Third petitioner commenced commercial activity of running
a Margin Free Supermarket. Petitioners 1 and 2 have provided
collateral security for the loan availed by the third petitioner. In fact, he
had availed a cash credit facility and a vehicle loan. The total
outstanding grew and the first respondent through second respondent
initiated proceedings under SARFAESI Act. Resultantly, the Chief
Judicial Magistrate appointed a commissioner to effect dispossession.
2. The cash credit limit of Rs.10,00,000/- (Rupees Ten
lakhs only) and the medium term loan for the vehicle for Rs.3,99,898/-
(Rupees Three lakhs Ninety nine thousand Eight hundred and Ninety
eight only) stood at a total outstanding of Rs.11,79,322/- (Rupees
Eleven lakhs Seventy nine thousand Three hundred and Twenty two
only), when Ext.P2 notice dated 13.8.2008 was issued under Section 13
(2) of the SARFAESI Act.
3. Following the payments, including the payment of Rs.1.5
lakhs following the interim order dated 2.1.2009, the balance amount
due in the MTL (car loan) has come down to be less than Rs.1,78,000/-
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(Rupees One lakh Seventy eight thousand only). Outstandings in the
cash credit facility has come down to be around Rs.4,21,000/- (Rupees
Four lakhs Twenty one thousand only). Thus, the total outstanding
would be around Rs.6,25,000/- (Rupees Six lakhs Twenty five thousand
only), apart from interest and other accruals that would legitimately
come under the loan.
4. The plea projected and placed for consideration today
on behalf of the petitioners is that the business activity in supermarket,
with the passage of time, not only became highly competitive, but has
been adversely affected by the depletion in the market trends and the
petitioners may be given an opportunity to pay off the remaining
outstandings to wipe off the loan and thereby avert the distress action.
For such purpose, petitioners also give up their right to challenge the
impugned proceedings before the DRT under Section 17 of the
SARFAESI Act.
5. Taking into consideration total amount outstanding for
recovery and the fact that the petitioners have made payment even after
Ext.P2 notice issued under Section 13 (2) of the Act and have also
complied the interim order issued by this Court, it is directed that if the
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petitioners remit at the rate of Rs.1,00,000/- (Rupees One lakh only) per
month payable on or before the 20th of every month commencing from
February, 2009, and thereby wipe off the entire outstandings and
accruals thereon, the impugned action will stand deferred and ultimately
dropped. If there is default in remitting any of the installments as
aforesaid, the benefit of this judgment will stand recalled automatically
and the respondents will be at liberty, to forthwith proceed with
dispossession of the petitioners. The petitioners will be at liberty to
request the bank for a statement of accounts and also for any
concession or reduction in the total outstandings. However, such plea
for reduction would not be considered before remittance of three among
the installments, as directed, are made. The writ petition is ordered
accordingly.
(THOTTATHIL B. RADHAKRISHNAN, JUDGE)
KMD