IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 18540 of 2010(N)
1. C.JOSE,S/O.CHELLAPPAN NADAR,
... Petitioner
Vs
1. THE FEDERAL BANK LTD., REPRESENTED BY
... Respondent
For Petitioner :SRI.G.SUDHEER
For Respondent :SRI.GEORGE VARGHESE (MANACHIRACKEL)
The Hon'ble MR. Justice C.K.ABDUL REHIM
Dated :17/09/2010
O R D E R
C.K.ABDUL REHIM, J
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W.P(C) No.18540 of 2010-N
Dated----------------------------2010.
this the 17th day of September,
J U D G M E N T
The petitioner, who is a Police Constable, had availed a
housing loan from the respondent Bank to the tune of
Rs.2,00,000/-, during the year 2006. The challenge in this writ
petition is against steps taken under the Securitization and
Reconstruction of Financial Assets and Enforcement of Security
Interest Act, 2002 (SARFAESI Act). Consequent to default committed
in repaying the loan, properties which are the secured assets were
taken over possession by the respondent Bank, invoking provisions
contained under Section 14(1) of the Act, by approaching the Chief
Judicial Magistrate Court. Ext.P2 is the order issued by the Chief
Judicial Magistrate in this regard. It is contended by the petitioner
that when the matter was pending disposal before the C.J.M Court,
the petitioner had effected payment of a sum of Rs.29,000/-, in
view of direction issued by that Court. But thereafter he could not
make payment of the balance, due to serious illness affected to him,
in between. It is stated that the petitioner’s son is also undergoing
W.P(C) No.18540 of 2010-N 2
treatment with respect to some illness.
2. At the time when this writ petition was moved, on the
basis of compliant raised by the petitioner that the respondents are
not even permitting to take the study materials as well as school
uniforms of the petitioner’s daughter from the house which was
dispossessed, an interim direction was issued by this Court and
those articles were handed over to the petitioner. This Court further
directed payment of an amount of Rs.30,000/-, which the petitioner
had already remitted. It is further submitted that on 24.7.2010 he
had effected payment of a further sum of Rs.20,000/-.
3. Eventhough various contentions are raised, learned
counsel for the petitioner sought indulgence of this Court in
directing to permit regularisation of the loan account, conceding
that the petitioner is relinquishing all his challenge against the
proceedings and that he is not intending to resort to any statutory
remedies available against the proceedings.
4. Considering the fact that the proceedings initiated under
the SARFAESI Act has reached a stage that the Bank had taken over
possession of the property, and also considering the fact that there
was no effective challenge raised by the petitioner during the course
W.P(C) No.18540 of 2010-N 3
of the proceedings by invoking any of the statutory remedies
available, I am of the opinion that interference on merits is not at all
proper. However learned counsel for petitioner submitted that he is
ready and willing to pay off the entire amount in default within a
short time and further to make payment of future monthly
instalments without any default. He also prays for indulgence in
permitting re-occupation of the house for residence of his family.
Eventhough interference on merits is not desirable, I am inclined to
consider such requests on the basis of equity.
5. In the result, the writ petition is disposed of directing the
petitioner to make payment of the entire defaulted amounts
outstanding within a period of two weeks from today. On payment
of such amounts, the respondent Bank shall permit the petitioner to
continue payment of future monthly instalments in terms of the
original loan agreement.
6. It is further directed that on regularisation of the loan
account as directed above, petitioner shall be permitted to occupy
the property only for the purpose of residence of himself and his
family, without prejudice to the legal possession being retained by
the respondent Bank and without prejudice to the rights of the
W.P(C) No.18540 of 2010-N 4
respondents to evict such occupation without recourse to any legal
proceedings, if necessary with police assistance.
7. It is made clear that on the event of default in payment
of any of the instalments in future, the respondent Bank will be free
to proceed with further steps for sale of the immovable property by
evicting the petitioner, if necessary with police assistance, for which
necessary assistance shall be rendered by the Station House Officer
having jurisdiction in the area.
8. It is also made clear that the above relief is granted
subject to the condition that the petitioner is precluded from raising
any subsequent challenge against any proceedings on the issue.
C.K.ABDUL REHIM
JUDGE
ab