IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 1560 of 2010(T)
1. T.S.SWAMINATHAN, AGED 36, S/O.LATE
... Petitioner
Vs
1. THE CHIEFMANAGER, (AUTHORISED OFFICER)
... Respondent
2. SRI.PADMADAS, S/O.KRISHNAN, ROHINI,
3. MISS.K.SHOBHA, D/O.KRISHNAN, ROHINI,
For Petitioner :SRI.I.DINESH MENON
For Respondent : No Appearance
The Hon'ble MR. Justice P.R.RAMACHANDRA MENON
Dated :04/02/2010
O R D E R
P.R.RAMACHANDRA MENON, J.
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W.P (C) No.1560 of 2010
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Dated this the 4th February, 2010
J U D G M E N T
The proceedings taken by the respondent Bank
issuing notice under Section 13 (2) of the SARFAESI Act
were challenged by the petitioner earlier by filing W.P (C)
No.28752 of 2009 ,which led to Ext.P5 judgment passed by
this Court on 6.11.2009, whereby, interference was
declined, however, with liberty to approach the Bank for
permitting the petitioner to have private sale or One Time
Settlement or for waiver of the interest as the case may be,
giving simultaneous direction to the bank to consider and
finalise the same.
2. It is the case of the petitioner that, pursuant to
Ext.P5 judgment, the petitioner filed Ext.P6 before the
bank which was considered and positively responded as
per Ext.P7, expressing willingness to release ‘two’ items of
properties for ‘private sale’; subject to the conditions as
stipulated therein. In the meanwhile, the petitioner
found out some prospective buyers with whom Exts.P8, P9
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and P10 agreements for sale have been executed. The
contention of the petitioner is that the sale could not take
place for the reason that somebody else filed a Civil Suit
before the Sub Court, Thrissur, wherein, the property
forming the subject matter of private sale as above, has
been caused to be attached as per order dated 13.1.2010
issuing Ext.P11 notice to the petitioner. It is also stated by
the learned counsel for the petitioner that pursuant to
Ext.P11 notice, the petitioner has appeared before the Civil
Court and has taken earnest efforts to see that the
attachment is lifted and the matter now stands adjourned
to 15.2.2010. The only limited prayer before this Court is
to provide some breathing time to get the attachment lifted,
so as to facilitate the ‘private sale’ and to clear the liability
to the Bank.
3. The learned counsel appearing for the Bank
submits, on instructions, that there is absolutely no merits
or bonafides in the claim made by the petitioner, more so,
since Exts.P8 to P10 agreements for sale were executed in
October 2009 and further the period for completion of the
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sale was only ‘one month’ from the date of the agreement,
which is already over. It is also brought to the notice of
this Court that the total liability of the petitioner to the
Bank will cross Rs.1.65 crores; whereas the amount likely
to be procured by the sale of the properties covered by
Exts.P8 to P10 will be only around Rs.25 lakhs.
4. The learned counsel for the petitioner submits
that the understanding between the petitioner and the
Bank was to go for a private sale of the properties in
question and to remit the entire amount procured by way
of sale to the bank, upon which loan account was to be
rescheduled enabling the petitioner to clear the liability in
a phased manner.
5. In any view of the matter, the fact remains that
the liability of the petitioner is still to be satisfied and that
no lapse or failure is pointed out on the part of the bank in
pursuing the remedy available to them under the
SARFAESI Act. This being the position, no interference is
warranted in this writ petition and the Bank is free to
proceed with further steps, in accordance with law.
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However, taking note of the persuasive submissions made
from the part of the petitioner to give some breathing time
to move the Sub Court, Thrissur, the respondent bank shall
proceed with such further steps only after 28.2.2010.
The Writ Petition is dismissed accordingly.
P.R.RAMACHANDRA MENON,
JUDGE
ma
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