IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 29718 of 2009(H)
1. T.S.SWAMINATHAN, AGED 36,
... Petitioner
Vs
1. THE HOUSING DEVELOPMENT FINANCE
... Respondent
For Petitioner :SRI.M.JITHESH MENON
For Respondent : No Appearance
The Hon'ble MR. Justice P.R.RAMACHANDRA MENON
Dated :04/01/2010
O R D E R
P.R. RAMACHANDRA MENON, J.
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W.P.(C)No. 29718 OF 2009
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Dated this the 4th January, 2010
J U D G M E N T
The coercive proceedings taken by the respondent Bank
invoking the provisions under the SARFAESI Act in the attempt
to realise the balance due on the Housing Loan availed by the
petitioner forms the subject matter of challenge in the Writ
Petition.
2. The case of the petitioner is that he had availed a
housing loan of Rs.24,04,778/- from the respondent Bank
assuring to effect payment by way of installments as agreed.
However, because of some adverse circumstances with regard to
the business conducted by the petitioner, he could not prove the
words by his deed, under which circumstance, the respondent
Bank proceeded with coercive steps, as stated above, which
made the petitioner to approach this Court challenging the same.
3. Heard the learned Counsel appearing for the bank as
well. On going through the proceedings on record, it is seen that
coercive steps were intercepted by this Court as per the interim
W.P.(C)No. 29718 OF 2009
2
order dated 23.11.2009 recording the undertaking given by the
learned Counsel for the petitioner that the petitioner would remit
a sum of Rs.6 lakhs within one week as a pre-condition to put
him back in possession of the residential house and premises
which has already been taken over by the respondent Bank
invoking the provisions under Section 13(4) of the SARFAESI Act
read with Section 14. Subsequently, when the matter came up
for consideration on 07.12.2009, this Court, taking note of the
deposit of Rs. 6 lakhs, as effected by the petitioner, directed the
petitioner to deposit a further sum of Rs.2.5 lakhs on or before
31.12.2009. This Court also directed the petitioner to execute
an affidavit before a Notary Public undertaking to vacate the
building unconditionally as and when demanded, on which event,
the respondent Bank was directed to permit the petitioner to
reside in the house situated in the property. The learned
Counsel appearing for both the sides concede that the
requirements as above have very much been complied with and
the petitioner has been put back in possession of the building.
4. Regarding the direction given by this Court in the last
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paragraph of the above interim order dated 07.12.2009, the
learned Counsel for the Bank submits that the petitioner had to
file a fresh concrete proposal before this Court, as to the
payment of the balance amount in equal monthly installments
within a specified time of six months. The learned Counsel for
the petitioner submits that necessary proceedings in this regard
will be filed within no time.
5. However, taking note of the submission made by the
learned Counsel for the Bank that the petitioner can be permitted
to clear the arrears by way of `six’ equal monthly installments,
the position in this regard is recorded and the matter is disposed
of permitting the petitioner to clear the outstanding arrears by
way of six equal monthly installments, the first of which shall be
effected on or before 15.02.2010, to be followed by the
remaining installments to be effected on or before the 15th of
the succeeding months. It is made clear that, if any default is
committed by the petitioner in satisfying the liability as above,
the Bank will be at liberty to proceed with further steps , from
the stage where it stands now, for realisation of the entire
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amount in a lump sum.
6. With regard to the submission made by the learned
Counsel for the petitioner that the petitioner might be permitted
to approach the Bank, seeking for regularisation of the loan
account, having cleared the entire outstanding liability towards
the defaulted arrears or to give further time to clear the liability
in toto, the learned Counsel for the Bank submits that, this is a
matter which can be considered only at the hands of the Bank, if
the petitioner submits a representation in this regard. In the said
circumstance, the petitioner is permitted to file a representation
seeking for the reliefs as above, within one month, on which
event, the same shall be considered and appropriate orders will
be passed in accordance with law, of course, after giving an
opportunity of hearing to the petitioner, as expeditiously as
possible. It is also made clear that the contents of the affidavit
submitted by the petitioner before the respondent bank in tune
with the direction in paragraph No.4 of the interim order dated
07.12.2009 will form part of the judgment for further steps. This
however, as well as the direction in para 5 of this judgment will
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be subject to the orders to be passed by the bank after
considering the representation of the petitioner as aforesaid
The Writ Petition is disposed of as above.
P.R. RAMACHANDRA MENON,
JUDGE.
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