IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 27515 of 2010(L)
1. SANDHYA.S.NAIR, MADATHIL VEEDU,
... Petitioner
Vs
1. STATE BANK OF TRAVANCORE, REGION II,
... Respondent
2. THE BRANCH MANAGER, STATE BANK OF
3. P.S.SANTHOSH KUMAR, P.S.BHAVAN,
For Petitioner :SRI.ANIL K.NARENDRAN
For Respondent : No Appearance
The Hon'ble MR. Justice C.K.ABDUL REHIM
Dated :20/10/2010
O R D E R
C.K.ABDUL REHIM, J.
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W.P.(C).No.27515 of 2010
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Dated this the 20th day of October, 2010
J U D G M E N T
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The 3rd respondent is the former husband of
the petitioner. Immovable property having an extent of
4 Ares (9.9 cents) covered under Ext.P1 settlement deed
was in the joint name of the petitioner and the 3rd
respondent. Subsequently the rights of the 3rd
respondent in the property was released in favour of the
petitioner by virtue of Ext.P2 deed, executed on
8.6.2007. As a consequence of the strained marital
relationship the petitioner was compelled to approach
the Family Court, Thiruvananthapuram seeking divorce.
Claim was also raised for realising various amounts due
from the 3rd respondent, to the tune of Rs.67,76,370/-.
By virtue of Ext.P3 judgment, the Family Court allowed
the divorce and decree was passed permitting the
petitioner to realise the above said amount from the 3rd
W.P.(C).27515/10-L -2-
respondent.
2. The issue involved in this writ petition pertains to
Medium Term Loan (Housing Loan) availed by the 3rd
respondent from the 1st respondent Bank, during the year
2001. Consequent to default committed in repaying the
amounts, respondents 1 and 2 had initiated proceedings
under the Securitisation and Reconstruction of Financial
Assets and Enforcement of Security Interest Act, 2002
(SARFAESI Act) against the property covered under
Ext.P1 & P2 which is the secured asset with respect to the
loan transaction. Ext.P4 is the copy of notice issued under
Section 13(2). It is stated that on receipt of Ext.P4 the
petitioner had approached the respondents 1 and 2 by
submitting Ext.P5 representation. Contents of Ext.P5 is to
the effect that, the petitioner was not having any direct
knowledge regarding the loan transaction and that her free
consent was not there while creating the mortgage.
However, request was to postpone further coercive steps on
the promise that the petitioner will pay off the liability in
W.P.(C).27515/10-L -3-
order to save the property from being sold. Ext.P6 is the
reply issued by the 1st respondent considering the said
request. It was informed that the Bank is unable to accede
to any such request of the petitioner, since the loan
account in question was treated as NPA as per the
guidelines of the Reserve Bank of India and since the
borrower has not cared to make payment of the amounts
due even after receipt of notice under Section 13(2).
3. Eventhough various grounds are raised in this
writ petition touching validity of the mortgage created,
learned counsel for petitioner conceded that the petitioner
is not intending to pursue such challenges, provided the
petitioner is permitted to pay off the entire liability within a
reasonable time, in installments, without prejudice to her
rights to recover the amounts from the 3rd respondent.
4. Learned counsel for respondents 1 and 2, on the
basis of instructions submitted that, the loan in question
was availed as early as in the year 2001 and there was
chronic default in repayments. The arrears outstanding
W.P.(C).27515/10-L -4-
payment is around Rs.13.18 lakhs, is the submission. It is
noticed that as a gesture of indulgence, when the writ
petition came up for consideration, this court directed the
petitioner to remit a sum of Rs.3 lakhs. Admittedly the
amount was remitted on 15.9.2010.
5. Considering the facts and circumstances, I am not
at all inclined to interfere with the SARFAESI proceedings
on the basis of the contentions, especially in view of the
alternate remedy provided under the statute. However, I
am of the opinion that indulgence can be shown in the
matter of permitting the petitioner to pay off the entire
liability within a reasonable period.
6. Accordingly the writ petition is disposed of
directing the respondents 1 and 2 to keep further
proceedings of recovery pursuant to Ext.P4 notice in
abeyance, provided the petitioner pays the entire liability
along with interest due thereon, in 4 equal monthly
installments, falling due on or before 30.11.2010 and on or
before the last day of the succeeding months.
W.P.(C).27515/10-L -5-
7. In view of Ext.P2 release deed, respondents 1 and 2
are directed to release the title deeds and other documents
kept in their custody pursuant to the mortgage created, to
the petitioner, once the entire balance is cleared payment.
8. It is made clear that payment of amounts if any
made by the petitioner will be without prejudice to her
rights of the petitioner to enforce Ext.P3 judgment passed
by the Family Court, against the 3rd respondent.
9. It is also made clear that on the event of default in
payment of any of the amounts as directed above the
respondents will be free to proceed with further steps of
recovery and on such event the petitioner is precluded from
raising any subsequent challenge.
C.K.ABDUL REHIM, JUDGE.
okb