IMPORTANT POINTS
The writ petitions should not be entertained against the proceedings taken under SARFAESI Act, 2002, on the ground that, there is an alternative efficacious remedy provided under SARFAESI Act, 2002 and having regard to the order under section 4 of the SARFAESI Act, 2002 already issued by the learned Chief Judicial Magistrate, this Court is not inclined to accept the contentions of the appellant and if it is accepted, it would be contrary to the judgment of the Hon'ble Supreme Court, besides, collaterally interfering with the order of the learned Chief Judicial Magistrate, granting permission to take physical possession.

JUDGMENT :

S. MANIKUMAR, J.

1. Challenge in this writ appeal is against the order passed in W.P.(C) No. 32976 of 2019 dated 21.1.2020, by which the writ court declined to grant a writ of mandamus to the bank to permit the appellant to repay the loan in considerable instalments and to regularise the loan amount by selling the secured assets within a period of six months, as prayed for. The impugned judgment reads thus;

3. Sri.P.J. Devaprasanth, learned Standing Counsel for the respondents (Nilambur Co-operative Urban Bank Ltd.), submits that earlier the co-obligant in the very same loan transaction has approached this Court which culminated Ext.P3 judgment dated 10.10.2017 in W.P.(C).No.32172/2017 for cash credit facility, at this point of time the total dues was around Rs.29.4 lakhs and this Court had liberally granted installments facility to the petitioner their, who never even care to be comply the same except making a partly payment of hardly around Rs.1,54,000/-and that as on now, the total outstanding dues to be cleared by the petitioner for closing of the account in relation with the instant cash credit facility com around Rs.54,77,270/-and that the respondent Bank is prepared to consider the pleas of the petitioner only if he pays an amount of rupees not less than 25 lakhs on or before 31.01.2020.

4. In which case, the Bank would permit him to clear the balance amount thereto in 4 equal monthly installments thereafter. From the tone and tenor of the submissions made by the petitioner, it appears that the petitioner may not be able to meet with the said dead line and requisite conditions. It is for the petitioner to consider whether he should accept the said offer or otherwise, if the said payment is not made by the petitioner within the said time deadline of 31.01.2020, it is open to the respondent Bank to proceed further with the impugned proceedings in accordance with law.

With these observations and directions, the above Writ Petition (Civil) stands finally disposed of.”

2. The impugned judgment is assailed on the grounds is relevant, which read thus:

“A. It is submitted with respect that the judgment of learned single judge, to the extent the same is challenged herein is against law.

B. It is submitted with respect that the directions of the learned single judge based on the submissions of the standing counsel for the bank that if the petitioner won't pay an amount of Rs. 25,00,000/-31.01.2020, it is open to the respondent bank to proceed further accordance with law, is against law and natural justice as the said condition is onerous and the same could not practically be complied by the petitioner.

C. It is submitted with respect that the learned single judge ought to have taken into consideration that the petitioner has approached this Hon'ble court for the first time. The petitioner have been repeatedly representing to the 2nd respondent pointing out that the amount claimed are not correct and exorbitant interest rates are being charged. As the petitioner had expressed his intention to clear all the amount which is outstanding, the learned single judge ought to have permitted the petitioner to repay the loan amount in more flexible instalments.

D. It is submitted with respect that the learned single judge ought to have taken into consideration that the remittances made by the said Usman have not been adverted by respondent No. 2 while proceeding against the property mortgaged.

E. The learned single judge ought to have taken into consideration that the petitioner and his family has no shelter of their own. Had the bank been much more lenient, the petitioner would have taken all efforts to repay the loan.

F. It is submitted with respect that the learned single judge ought to have taken into consideration that the bank has already taken physical possession of all the secured assets except the residential building of the petitioner. Now the bank is about to take the physical possession of the residential building as well. Even