IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 26034 of 2008(Y)
1. C.V.VENUGOPAL NAIR, S/O.VASUDEVA PILLAI,
... Petitioner
2. MRS.LALITHA VENUGOPAL, W/O.VENUGOPAL,
Vs
1. THE HOUSING DEVELOPMENT FINANCE
... Respondent
2. THE AUTHORIZED OFFICER, SARFAESI ACT,
For Petitioner :SRI.A.MOHAMED MUSTAQUE
For Respondent :SRI.K.K.CHANDRAN PILLAI, SC, HDFC
The Hon'ble MR. Justice THOTTATHIL B.RADHAKRISHNAN
Dated :26/09/2008
O R D E R
THOTTATHIL B.RADHAKRISHNAN, J.
-------------------------------------------
W.P(C).No.26034 OF 2008
-------------------------------------------
Dated this the 26th day of September, 2008
JUDGMENT
Petitioners availed a loan from the first respondent and
defaulted in repayment. That led to Ext.P1 judgment and Ext.P2
decree on 27.3.2007, whereby, the rate of future interest
granted is only at 6% per annum. Execution proceedings were
taken out and while that matter was pending, the bank initiated
proceedings under the SARFAESI Act. Though the learned
counsel for the petitioner pointed out that it would be unjust to
have parallel proceedings, the proceedings under the SARFAESI
Act are, in no manner, hit by the execution proceedings in the
civil court. Not only that, the presence of a decree gives
assurance to other courts and authorities that there could be no
legitimate dispute surviving Ext.P2, on the question of the total
amounts due for recovery. In this context, it is worthwhile to
note the submissions made on behalf of the first respondent that
what is put for recovery under the SARFAESI Act is only the
amount covered by Ext.P2 decree. Therefore, there is really no
WPC.26034/08
Page numbers
room to interfere with that proceedings. The first petitioner has
sworn to an affidavit on 23.9.2008 giving up all contentions,
including the right to challenge the action of the respondents
under the SARFAESI Act before any other statutory authority.
He also seeks a period of six months to wipe off the entire
outstandings. Learned counsel for the bank is right in stating
that the time as sought for may not be granted since the post
decree interest in terms of Exts.P1 and P2 is only at the rate of
6% per annum.
In the result, repelling all other contentions and upholding
the impugned proceedings under the SARFAESI Act as also
recording the submission of the petitioners in giving up their
right to challenge all action under the SARFAESI Act before any
authority, it is directed that the impugned distress action will
stand deferred by a period of four months to enable the
petitioners to pay off the entire outstandings in a lump or if the
petitioners deposit one half of the amounts within a period of
three months from now, the bank will hold back distress action
WPC.26034/08
Page numbers
for a further period of two months to enable the petitioners to
pay off the other half also. All this will be on the further
condition that the petitioners deposit an amount of Rupees One
Lakh within a period of one month from now and a further
amount of Rupees One Lakh within another one month.
However, if there is default in remitting amounts as aforesaid,
the benefit of this judgment shall stand recalled automatically
and distress action shall follow.
Sd/-
THOTTATHIL B.RADHAKRISHNAN,
Judge
kkb.
