IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 28217 of 2009(V)
1. B.RAJAN, S/O.BHASKARAN,
... Petitioner
2. SUDHA.G, W/O.RAJAN,
Vs
1. THE DISTRICT CO-OPERATIVE BANK LTD.,
... Respondent
2. THE AUTHORISED OFFICER,
3. G.K.SHANKAR DAS, G.L.BHAVAN,
For Petitioner :SRI.G.P.SHINOD
For Respondent : No Appearance
The Hon'ble MR. Justice C.K.ABDUL REHIM
Dated :23/10/2009
O R D E R
C.K.ABDUL REHIM, J.
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W.P.(C).No.28217 OF 2009
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Dated this the 23rd day of October, 2009
J U D G M E N T
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1. Petitioners are husband and wife. Immovable
property belonging to the petitioners were mortgaged in order to
secure a loan availed by the 3rd respondent from the 1st
respondent Bank. Pursuant to default committed by the 3rd
respondent in repayment, recovery steps were proceeded
against under the provisions of the Securitisation and
Reconstruction of Financial Assets and Enforcement of Security
Interest Act, 2002 (SARFAESI Act). After taking over possession
of the property under Section 13(4) of the Act the 1st respondent
had proclaimed sale as evidenced by Ext.P1 notice. This writ
petition was moved on the date on which the sale was scheduled
and this court had stayed confirmation of the sale, if any
conducted. It is submitted by both sides that no sale took place
on 8.10.2009.
2. Contention of the petitioners is that, the petitioners as
well as the 3rd respondent have approached the Bank with
request for permitting payment of the entire liability in
installments. But the Bank has not acceded to such requests.
W.P.(C).28217/09-V 2
Learned counsel for the petitioners submitted that they are
ready and willing to pay off the entire liability inspite of the fact
that the 3rd respondent is the borrower, provided reasonable
time is granted to effect payment in installments.
3. Heard, learned standing counsel appearing for the 1st
respondent, who on the basis of instructions submitted that, the
loan was availed as early as in the year 2002 and the 3rd
respondent had committed serious default in repayment. It is
further submitted that the amount due as on 28.9.2009 is
Rs.3,81,509/-. Since the loan account is in chronic default the 1st
respondent is not favouring in allowing installment facility to the
petitioners.
4. Having considered facts and circumstances of the
case, I am of the opinion that interference on merit against the
SARFAESI proceedings is not at all desirable in view of the
effective alternate remedy available. However, considering offer
of the petitioners to pay off the entire liability I am inclined to
show indulgence in permitting the petitioners to wipe off the
liability within a reasonable time in installments.
5. Accordingly the writ petition is disposed of directing
the petitioners to make payment of an amount of Rs.1,50,000/-
(Rupees One lakh Fifty thousand only) on or before 15.12.2009.
The respondents 1 and 2 are directed to keep in abeyance
W.P.(C).28217/09-V 3
further steps till such date. If the amount as directed above is
paid, the 1st respondent Bank will intimate the petitioners about
the total balance outstanding, after considering waiver of
interest/default interest, if any possible and after crediting all
payments made. The petitioners shall continue to pay the
balance amount so intimated in 4 (four) equal monthly
installments starting from 15.01.2010 and on or before 15th day
of the succeeding months.
5. It is made clear that on the event of default in
payment of any of the amounts stipulated as above, the
respondents 1 and 2 are free to proceed with further steps
pursuant to the action already taken, and on such event the
petitioners will be precluded from raising any further challenge
against such proceedings either before this court or before any
other forum.
C.K.ABDUL REHIM, JUDGE.
okb