Haneefa T.K vs Poonvala Housing Finance Ltd
2022 Latest Caselaw 9611 Ker

                IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                PRESENT
                 THE HONOURABLE MR. JUSTICE GOPINATH P.
     THURSDAY, THE 25TH DAY OF AUGUST 2022 / 3RD BHADRA, 1944
                        WP(C) NO. 27058 OF 2022
     AGAINST THE ORDER/JUDGMENTCMP 779/2022 OF CHIEF JUDICIAL
                         MAGISTRATE ,KOZHIKODE
PETITIONER/S:

    1     HANEEFA T.K
          AGED 44 YEARS
          FIDHA MAHAL,THARIPANAPARAMBHU, JAYANTHY ROAD
          NALLALAM POST, KOZHIKODE DISTRICT, PIN - 673027
    2     SUBEENA K.K
          AGED 37 YEARS
          W/O HANEEFA T.K, FIDHA MAHAL,
          THARIPANAPARAMBHU, JAYANTHY ROAD,NALLALAM POST,
          KOZHIKODE DISTRICT., PIN - 673027
    3     JAISAL T.K
          AGED 41 YEARS
          S/O T.K MOIDEENKUTTY, FIDHA MAHAL,
          THARIPANAOARAMBHU, JAYANTHY ROAD,NALLALAN POST,
          KOZHIKODE DISTRICT., PIN - 673027
          BY ADV JESWIN P.VARGHESE


RESPONDENT/S:

    1     POONVALA HOUSING FINANCE LTD.
          4TH FLOOR, CITY GALLERY, KANNUR ROAD,
          NEAR YMCA, CALICUT - 1
          REPRESENTED BY ITS AUTHORIZED OFFICER, PIN - 673001
    2     THE AUTHORIZED OFFICER
          M/S POONVALA HOUSING FINANCE LTD,
          4TH FLOOR, CITY GALLERY, KANNUR ROAD,
          NEAR YMCA, CALICUT - 1, PIN - 673001
    3     MAGMA FINCORP LIMITED
          4TH FLOOR, CITY GALLERY, KANNUR ROAD,
          NEAR YMCA, CALICUT - 1
          REPRESENTED BY ITS BRANCH MANAGER, PIN - 673001
          BY ADVS.
          PHILIP T.VARGHESE
          ACHU SUBHA ABRAHAM(K/001758/1999)
          V.T.LITHA(K/278/2006)
          K.R.MONISHA(K/915/2013)
          ALEX THOMAS(K/1493/2020)
          ARJUN RAJA P.C.(K/843/2019)
 W.P(C) .27058/22                     2


              SREENATH VIJAYARAGHAVAN(K/001097/2017)


      THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
25.08.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 W.P(C) .27058/22                            3


                                    JUDGMENT

Petitioners have approached this Court being aggrieved by the

proceedings initiated against the petitioners under the provisions of the

Securitisation and Reconstruction of Financial Assets and Enforcement of

Security Interest Act (hereinafter referred to as the SARFAESI Act) for taking

physical possession of the residential house of the petitioners.

2. The learned counsel appearing for the petitioners states that the

petitioners may be given a breathing time to approach the Debts Recovery

Tribunal for relief under Section 17 of the SARFAESI Act.

3. The learned counsel appearing for the respondent bank points out

that the petitioners have not paid a single amount towards the liability in the

year 2022 and the last payment was on 1.10.2021. It is submitted that if any

protection is being granted to the petitioners, it may be on terms.

Having regard to the submissions made by the learned counsel for the

petitioners and the learned counsel appearing for the respondent bank, this

writ petition is disposed of directing that the taking of physical possession of

the secured asset shall be deferred by a period of three weeks from today in

order to enable the petitioners to seek appropriate reliefs from the Debts

Recovery Tribunal. This shall, however, be on condition that the petitioners

remit a sum of Rs.3,00,000/- (Rupees Three lakhs only) towards the loan

liability within a period of two weeks from today. The Tribunal will decide the

matter, on merits, and uninfluenced by any observation/condition imposed in

this judgment.

The writ petition is disposed of as above.

Sd/-

GOPINATH P.

JUDGE okb/

APPENDIX OF WP(C) 27058/2022

PETITIONER EXHIBITS Exhibit P1 A TRUE COPY OF ARBI. E.P NO. 28/2020 IN ARBITRATION NO. ARB/112/2019 PENDING BEFORE ADDITIONAL DISTRICT COURT-IV, KOZHIKODE DATED 16.01.2020 Exhibit P2 A TRUE COPY OF THE NOTICE ISSUED BY ADVOCATE COMMISSION APPOINTED BY CHIEF JUDICIAL MAGISTRATE COURT, KOZHIKODE IN CMP NO.779/2022 DATED 16.08.2022 Exhibit P3 A TRUE COPY OF STATEMENT OF ACCOUNTS OF A/C NO. 919020002170436 MAINTAIN AT AXIS BANK, BEPORE BRANCH RESPONDENT EXHIBITS Exhibit R1 True copy of the Certificate of Incorporation issued by the Registrar of Companies, Calcutta dated 22.07.2021 Exhibit R1(a) True copy of the letter submitted by the 1st petitioner to the 3rd respondent dated 18.08.2022