Disposed

Janaki v. the District Collector

Kerala HC13 Dec 2010WP(C)/34331/2010

Case brief

AI extract

What is this about?

In a writ petition challenging SARFAESI Act proceedings against a guarantor's mortgaged property, the Kerala High Court held that while direct interference on merits was barred, it permitted installment payments of the outstanding loan balance as a condition for staying coercive actions, subject to waiver requests and no future challenges.

What did the court decide?

Stay of coercive steps on payment of entire balance dues plus interest and expenses in six equal monthly installments, subject to no future challenges and liberty to seek clarifications or interest wa

Janaki Vs the District Collector — Banking and Recovery | Kerala HC (2010)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT :

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THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM

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MONDAY, THE 13TH DECEMBER 2010 / 22ND AGRAHAYANA 1932

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WP(C).No. 34331 of 2010(N) --------------------------

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PETITIONER(S):

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JANAKI,W/O.LATE VELAYUDHAN,AGED 70 YRS, W/O.MARUNNU KUZHIYIL HOUSE,PACHATHIRI.P.O, MALAPPURAM.

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BY ADV. SRI.C.V.MANUVILSAN SRI.P.G.SURESH SMT.K.VIDYA SRI.P.S.ANISHAD

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RESPONDENT(S):

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THE DISTRICT COLLECTOR,DISTRICT COLLECTORATE,MALAPPURAM.PIN-676505.

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M/S.TIRUR URBAN CO-OPERATIVE BANK LTD

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(F.1818),HEAD OFFICE TIRUR,REPRESENTED BY ITS MANAGER-676101.

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THE SUPERINTENDENT OF POLICE,MALAPPURAM. PIN-676505.

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ADV.SHEENA RAJAN,ADVOCATE COMMISSIONER IN CMP 1818/2010,CHIEF JUDICIAL MAGISTRATE COURT,MANJERI,PIN-676121.

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M PRADEEP,S/O.LATE VELAYUDHAN, AGED 70 YEARS,W/O.MARUNNU KUZHIYIL HOUSE, PACHATHIRI.P.O,MALAPPURAM-676 105.

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ADV. SRI.DEVAPRASANTH.P.J. FOR R2

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SRI.BABU S. NAIR FOR R-4

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GOVERNMENT PLEADER SRI.BIJOY CHANDRAN

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 13/12/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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C.K. ABDUL REHIM, J

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WP(C) NO. 34331 OF 2010

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Dated this the 13^th day of December, 2010

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JUDGMENT

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Proceedings initiated under the provisions of the Securitistation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI Act) is under challenge in this Writ Petition. The petitioner is a guarantor with respect to a loan availed by her son from the second respondent Bank, for which immovable property belonging to the petitioner was mortgaged. Consequent to default committed in repayment of the loan steps were initiated against the immovable property and the Bank had approached the Chief Judicial Magistrate Court invoking Section 14 (1) of the Act. That Court had appointed an Advocate Commissioner to take over possession of the property.

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It is noticed that the 5^th respondent borrower, who is the son of the petitioner, had approached this Court on an earlier occasion by filing WP(C) No.

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WP(C) No. 34331/2010

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12610/2010. But the said Writ Petition was withdrawn with liberty to approach the second respondent Bank for negotiation settlement. Ext.P6 is the notice issued by the Advocate Commissioner requesting to hand over possession of the immovable property belonging to the petitioner.

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According to the petitioner, she was not aware about the loan availed by the 5^th respondent. However it is stated that, inspite of approaches made to the second respondent requesting to permit payment of the liability within a reasonable time, the coercive steps are being pursued, without accepting such request. Hence the petitioner seeks interference of this Court to restrain dispossession and sale of the property in question.

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Considering the fact that the petitioner had not chosen to avail the statutory remedies provided under the SARFAESI Act, it is not proper and justified for this Court to interfere with the proceedings in question. This is especially in view of the dictum laid by the Hon'ble

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WP(C) No. 34331/2010

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Supreme Court in United Bank of India Vs. Satyawati Tondon and others [2010 (8) SCC 110].

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However as a gesture of indulgence, this Court had stayed the dispossession through interim order dated 15.11.2010, subject to condition for payment of a sum of Rs.3,50,000/-. It is stated that the amount has already been paid. Learned counsel appearing for the second respondent on the basis of instructions submitted that the balance outstanding is more than Rs.11.30 lakhs.

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Learned counsel for the petitioner had undertaken that the petitioner is not intending to pursue the statutory remedies and he is relinquishing all challenges against the proceedings initiated under the SARFAESI Act. On the other hand a limited prayer is made to permit payment of the balance outstanding in a phased manner, within a reasonable time.

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Having considered the facts and circumstances, I

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am of the view that, eventhough interference on merits is

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WP(C) No. 34331/2010

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not possible, the petitioner can be permitted to pay off the entire liability in instalments, within a reasonable period.

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Accordingly, the Writ Petition is disposed of directing the second respondent to keep in abeyance all further coercive steps initiated on the basis of the proceedings pending before the Chief Judicial Magistrate Court, subject to condition of the petitioner remitting the entire balance outstanding, including interest and expenses if any due, in 6 (six) equal monthly instalments falling due on or before 15.01.2011 and on or before the 15^th day of the succeeding months.

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It is made clear that the petitioner will be at liberty to approach the second respondent seeking clarifications with respect to correctness of the amounts in demand and also seeking waiver of interest/penal interest/expenses. Needless to say that if any such approach is made, the second respondent will be at liberty to consider the same and to take appropriate decisions

WP(C) No. 34331/2010

thereof.

It is further made clear that on the event of default in payment of any one of the instalments as stipulated above, the respondents will be at liberty to proceed with further steps on the basis of the notices already issued. It is also made clear that the relief granted above is subject to condition that the petitioner is precluded from raising any subsequent challenge against such proceedings.

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C.K. ABDUL REHIM JUDGE

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dnc

Janaki v. the District Collector

Case brief

What is this about?

What did the court decide?

Janaki v. the District Collector

Case brief

What is this about?

What did the court decide?

What the court decided

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