IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 28322 of 2010(M)
1. ABDUL HAMEED MARAKKAR,
... Petitioner
Vs
1. THE SOUTH INDIAN BANK LTD.,
... Respondent
2. THE AUTHORISED OFFICER,
3. THE SOUTH INDIAN BANK LTD.,
For Petitioner :SRI.C.M.MOHAMMED IQUABAL
For Respondent :SRI.GEORGE VARGHESE,SC,SOUTH INDIAN BAN
The Hon'ble MR. Justice C.K.ABDUL REHIM
Dated :14/10/2010
O R D E R
C.K. ABDUL REHIM, J
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WP(C) NO. 28322 OF 2010
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Dated this the 14th day of October, 2010
JUDGMENT
The petitioner availed two finanacial assistances
from the respondent Bank, one being a cash credit facility
for business purpose and other being a housing loan.
Consequent to defaults committed in repayment of the
loans, the respondents initiated proceedings under the
Securitisation and Reconstruction of Financial Assets and
Enforcement of Security Interest Act, 2002 (SARFAESI
Act) and immovable property which is the secured asset
were proceeded against. Ext.P1 is the notice issued
under Section 13 (2) and Ext.P3 is the notice issued for
taking over possession of the property [as per the steps
contemplated under Section 13 (4)]. According to the
petitioner, he had approached the Bank, expressing
willingness to regularize the loan account by paying the
defaulted amounts. But without acceding to such request
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coercive steps of dispossession is being pursued. Hence
this Writ Petition was filed.
2. Learned counsel appearing for the respondent
Bank, on the basis of instructions, submitted that there is no
transactions in the cash credit facility since the last more
than one year and the business in question remains defunct
and no stock was available in the premises. It is stated that
an amount of more than Rs.19.70 lakhs is due under that
account. With respect to the housing loan, it is submitted
that the petitioner is in default of payment of more than
4.30 lakhs, and there was consecutive defaults in payment
of the EMIs. However it is conceded by the respondents
that if the petitioner clears payment of the defaulted
amounts in the housing loan, he can be permitted to
continue payment of the balance amounts as per original
schedule. But with respect to the cash credit facility it is
submitted that the petitioner cannot be permitted to
continue, since the business is not functioning.
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3. Having regard to the fact that the scheme of the
statute provides effective remedies to the petitioner against
steps taken under the SARFAESI Act, I am not all inclined
to interfere on merits of the contentions. However, I am of
the view that indulgence can be shown in the matter of
permitting the petitioner to regularize the housing loan
account. It is made clear that if the petitioner makes
payment of the entire amount in default with respect to the
housing loan account, within a period of one month from
today, the respondents shall permit the petitioner to
continue payment of future monthly instalments in
accordance with original schedule.
4. As far as the cash credit facility is concerned, I
am of the opinion that the petitioner can be afforded with
an opportunity to approach the appropriate authority under
the respondents either to seek revival of the loan account or
seeking waiver and instalment payments. If any such
approach is made by the petitioner, after regularizing the
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housing loan account, the same shall be considered by the
appropriate authority of the respondent Bank and a reply
thereof shall be issued to the petitioner.
5. Needless to say that further steps for realizing the
amounts under the cash credit facility shall be pursued only
after taking decision on the matter as directed above. It is
made clear that on the event of default in complying with
any of the conditions stipulated as above, the respondent
will be free to proceed with further steps based on the
notices already issued, and on such an event the petitioner
will be precluded from raising any subsequent challenge
against such proceedings.
C.K. ABDUL REHIM
JUDGE
dnc