IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 32238 of 2010(D)
1. SANTHAKUMARI, AGED 51 YEARS,
... Petitioner
Vs
1. THE KOLLAM CO-OPERATIVE URBAN
... Respondent
2. THE AUTHORIZED OFFICER,
3. DAYAK.B.S.,
4. S.BALACHANDRAN,
For Petitioner :SRI.C.RAJENDRAN
For Respondent :SRI.N.DHARMADAN (SR.)
The Hon'ble MR. Justice C.K.ABDUL REHIM
Dated :02/12/2010
O R D E R
C.K.ABDUL REHIM, J
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W.P(C) No.32238 of 2010-D
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Dated this the 2nd day of December, 2010.
J U D G M E N T
The petitioner is a guarantor with respect to a loan
availed by the 4th respondent from the 1st respondent Bank.
Immovable property belonging to the petitioner was
mortgaged for securing the loan. Consequent to default
committed by the 4th respondent in repayment of the loan,
the 1st respondent had initiated proceedings under the
Securitization and Reconstruction of Financial Assets and
Enforcement of Security Interest Act, 2002 (SARFAESI Act).
Invoking provisions contained in Section 14(1) the Chief
Judicial Magistrate Court was approached and that Court
had appointed an Advocate Commissioner to take over
possession of the immovable property. Ext.P3 is the notice
issued by the Advocate Commissioner (3rd respondent).
2. According to the petitioner, after availing the loan
in question, the 4th respondent went to Gulf countries and
W.P(C) No.32238 of 2010-D 2
he met with an accident. Therefore the 4th respondent could
not make payments in the loan account as per the schedule.
However, it is conceded that the 4th respondent is the
sister’s son of the petitioner. The petitioner is seeking
indulgence of this Court in directing the respondents to
keep in abeyance further coercive steps against the
property, on the basis of an undertaking that she will pay
the entire amounts in a phased manner, with a view to save
the property from being sold.
3. Heard, standing counsel appearing for
respondents 1 and 2. It is stated that total amount
outstanding in the loan account is more than Rs.2.32 lakhs
and the loan in question is in chronic default. It is further
stated that, neither the borrower nor the guarantor had
taken any earnest efforts to pay off the liability inspite of
repeated demands made.
4. Considering the fact that the petitioner had not
resorted to any of the statutory remedies available, at any
stage of the proceedings initiated under the SARFAESI Act,
W.P(C) No.32238 of 2010-D 3
it is not just and proper for this Court to restrain
respondents 1 and 2 from proceeding with the impugned
steps. This is especially in view of the directive issued by
the Hon’ble Supreme Court in United Bank of India V
Sathyawati Tondon & others (2010(8) SCC 110).
5. However, learned counsel for the petitioner
submitted that the petitioner is not intending to invoke any
of the statutory remedies and that she is relinquishing all
challenges against the proceedings. On the other hand, the
limited prayer is only to permit the petitioner to make
payment of the entire arrears within a reasonable time, in
instalments, in order save the property from being sold. It
is noticed that, pursuant to an interim order issued by this
Court on 21.10.2010, the petitioner had remitted a sum of
Rs.50,000/-.
6. Eventhough interference on merits is not proper, I
am of the view that indulgence can be shown in permitting
the petitioner to pay off the liability in instalments within a
reasonable time.
W.P(C) No.32238 of 2010-D 4
7. Accordingly, the writ petition is disposed of
directing respondents 1 to 3 to refrain from proceeding with
any further steps on the basis of Ext.P3 notice, subject to
condition of the petitioner remitting the entire balance
outstanding along with interest if any due, in 10 (ten) equal
monthly instalments falling due on or before 31.1.2011 and
on or before the last day of 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 orders
already issued by the Chief Judicial Magistrate Court. It is
made clear that the above relief is granted subject to
condition that the petitioner is precluded from raising any
subsequent challenge against the proceedings.
Sd/-
C.K.ABDUL REHIM
JUDGE
//True Copy//
P.A to Judge
ab