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C.V.Venugopal Nair vs The Housing Development Finance on 26 September, 2008

Kerala High Court
C.V.Venugopal Nair vs The Housing Development Finance on 26 September, 2008
       

  

  

 
 
  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.

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