IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 29817 of 2009(V)
1. R.ANIL KUMAR, S/O.RAMAKRISHNAN NAIR,
... Petitioner
Vs
1. STATE BANK OF TRAVANCORE,
... Respondent
2. M/S.TRINITY ASSOCIATES, XI/517-C,
For Petitioner :SRI.P.V.JYOTHI PRASAD
For Respondent : No Appearance
The Hon'ble MR. Justice C.K.ABDUL REHIM
Dated :26/10/2009
O R D E R
C.K.ABDUL REHIM, J.
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W.P.(C).No.29817 OF 2009
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Dated this the 26th day of October, 2009
J U D G M E N T
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1. Petitioner is a surety to a loan transaction of the 2nd
respondent, entered with the 1st respondent Bank. Immovable
property belonging to the petitioner is mortgaged for securing
the loan. Since the 2nd respondent had defaulted payment of the
loan amount the 1st respondent had initiated proceedings under
the Securitisation and Reconstruction of Financial Assets and
Enforcement of Security Interest Act, 2002 (SARFAESI Act)
against the secured asset, which is the immovable property
belonging to the petitioner. Notice under Section 13(2) of the
SARFAESI Act was issued on 5.2.2007. Subsequently notice
under Section 13(4) was issued on 19.5.2009. Now the property
in question is proclaimed for sale as evidenced by Ext.P1 notice
dt.18.9.09. Sale is scheduled to be held on 27.10.09.
2. Contention of the petitioner is that he is ready and
willing to pay the entire amounts outstanding in the loan
account, within a reasonable time in installments. But his
apprehension is that the respondent Bank may proceed against
the property for realisation of another loan availed by the 2nd
respondent from another branch of the 1st respondent Bank,
eventhough the property in question is not mortgaged with
W.P.(C).29817/09-D 2
respect to the said loan transaction.
3. Learned standing counsel appearing on behalf of the
1st respondent, on the basis of instructions, submitted that the
property in question is not a secured asset with respect to the
loan transaction of the 2nd respondent with another branch. But
at the same time the petitioner is a co-obligant in that
transaction and the Bank had already obtained a decree with
respect to arrears in the said loan account, which is availed from
Udayamperoor branch of the 1st respondent Bank, in
O.S.No:258/08 from the Sub Court, Ernakulam. It is further
submitted that the property belonging to the petitioner is under
attachment as per order issued from the civil court, in that case.
However, it is submitted that since the property in question is
not a secured asset with respect to the other loan, there is no
impediments in returning the title deed to the petitioner on the
petitioner remitting the entire amount, due in the present loan.
But the Bank is not favouring in permitting the petitioner to pay
off the liability in easy installments.
4. Having considered facts and circumstances of the
case and contentions on both sides I am of the opinion that the
apprehension expressed by the petitioner stands cleared through
the statement made on behalf of the 1st respondent. Eventhough
interference on merit with respect to the SARFAESI proceedings
is not at all desirable, I am of the view that some indulgence can
W.P.(C).29817/09-D 3
be shown in the matter of permitting the petitioner to pay off the
entire liability within a reasonable time.
5. Accordingly the writ petition is disposed of directing
the petitioner to make payment of an amount of Rs.50,000/-
(Rupees Fifty thousand only) on or before 10.11.2009. The 1st
respondent is directed not to confirm the bid, if any received in
the auction proposed to be held on 27.10.2009 till such date. On
payment of the above said amount the 1st respondent shall issue
a balance statement to the petitioner after crediting all such
payments and after considering waiver of interest/default
interest if any possible. The petitioner shall continue to pay the
balance so intimated in 4 (four) equal monthly installments
starting from 30.11.09 and on or before the last day of the
succeeding months.
6. It is made clear that on the event of default in
payment of any of the amounts as stipulated above the
respondent Bank will be free to take further steps pursuant to
the notice already issued and on such event the petitioner will be
precluded from raising any further challenge before this court or
before any other forum.
C.K.ABDUL REHIM, JUDGE.
okb