JUDGMENT

Dated this the 30th day of June, 2022 The petitioner is before this Court aggrieved by the non-

consideration of S.A.No.124 of 2022 and the stay petition filed along with that, while the respondents are taking coercive proceedings against the petitioner.

2. The petitioner states that he has availed a housing loan from the State Bank of India. When the housing loan was allegedly defaulted, the 1st respondent issued Ext.P2 Possession Notice invoking the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI Act, 2002). The petitioner would submit that the Possession Notice was issued without providing 60 days time after issuing Ext.P1 Demand Notice.

3. The petitioner challenged Exts.P1 and P2 filing S.A.

No.124/2022 before the Debts Recovery Tribunal-II, Ernakulam. A stay petition was also filed. The Tribunal has not considered the stay petition filed by the petitioner. If pending the appeal and the stay petition, the respondents are permitted to go ahead with the proceedings under the SARFAESI Act, 2002, the petitioner will be put to untold hardship and loss.

4. Standing Counsel entered appearance and resisted the writ petition. The Standing Counsel controverted all the material allegations made by the petitioner in the writ petition. It is submitted that the petitioner is a persistent defaulter of the housing loan taken. The petitioner was required to clear off the outstanding dues repeatedly. It is only when the petitioner failed to clear off the liabilities that the respondents have initiated proceedings under the SARFAESI Act, 2002. The Standing Counsel specifically denied the allegation that 60 days notice was not issued to the petitioner, after issuing Demand Notice.

5. I have heard the learned counsel for the petitioner and the learned Standing Counsel representing the respondents.

6. The specific case of the petitioner is that after issuing Ext.P1 notice, Ext.P2 Possession Notice was issued without providing the statutory mandated period of 60 days. Therefore, the petitioner has a very strong legal case against the proceedings. The petitioner has approached the DRT-II, Ernakulam challenging the said action.

7. In view of the facts and circumstances of the case, this Court is of the view that the petitioner can be permitted to pursue his remedies before the DRT and a breathing time can be granted to the petitioner for the same, on conditions.

8. In the circumstances, the writ petition is disposed of with the following directions:-

1) The petitioner shall remit an amount of `1 lakh within a period of 15 days from today.

2) If the petitioner remits the said amount, the respondents shall defer all coercive proceeding against the petitioner for a period of one month, to enable the petitioner to move the DRT for consideration of Ext.P3 S.A.No.124 of 2022 and Ext.P3(A) stay petition.

3) If the petitioner defaults in payment of `1 lakh within

15 days as directed above, the respondents will be free to proceed against the petitioner.

sd/-

N.NAGARESH JUDGE hmh APPENDIX OF WP(C) 21075/2022 PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE NOTICE DATED

01.12.2021 U/S. 13(2) OF SARFAESI ACT, 2002 SERVED ON 29.12.2021.

Exhibit P2 TRUE COPY OF THE NOTICE DATED

04.02.2022.

Exhibit P2a TRUE COPY OF THE ACCOUNT STATEMENT IN THE LOAN ACCOUNT NO. 30938323376 IN THE NAME OF THE PETITIONER FROM 28.10.2009 TO 19.03.2021.

Exhibit P3 TRUE COPY OF THE S.A. NO. 124/2022 DATED 18.03.2022 FILED BEFORE THE HON'BLE DEBT RECOVERY TRIBUNAL II, ERNAKULAM BY THE PETITIONER.

Exhibit P3(a) TRUE COPY OF THE PETITION FOR STAY S.A.

NO. 124/2022 DATED 18.03.2022 FILED BEFORE THE HON'BLE DEBT RECOVERY TRIBUNAL II, ERNAKULAM BY THE PETITIONER.

Exhibit P4 TRUE COPY OF THE ORDER DATED 07.06.2022 PASSED BY THE CHIEF JUDICIAL MAGISTRATE, ALAPPUZHA IN M.C NO.

277/2022.

Exhibit P5 TRUE COPY OF THE NOTICE 13.06.2022 ISSUED BY ADVOCATE COMMISSIONER IN M.C.

NO. 277/2022.

Exhibit P6 TRUE COPY OF THE ADVANCE PETITION I.A.

NO. 1375/2022 DAT