IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN THURSDAY, THE 4TH SEPTEMBER 2008 / 13TH BHADRA 1930 W.P(C).No. 26443 of 2008(W) -------------------------- PETITIONER: ------------ MATHEW, S/O.OOMMEN,AGED 69 YEARS,MERRYLAND,KARAZHMA KIZHAKKUMMURI,CHENNITHALA VILLAGE. BY ADV. SRI.P.KESAVAN NAIR SRI.K.G.CLEETUS RESPONDENTS: ------------- 1. ALAPUZHA DISTRICT CO-OPERATIVE BANK LTD., REPRESENTED BY GENERAL MANAGER, ALAPUZHA DISTRICT CO-OPERATIVE BANK LTD., HEAD OFFICE, ALAPUZHA. 2. RAJAN P.OOMMEN, PUTHENPURAYIDATHIL, MATTOM SOUTH, KANNAMANGALAM VILLAGE. 3. SPECIAL OFFICER ALAPUZHA DISTRICT CO-OPERATIVE BANK LTD., ALAPPUZHA. BY SMT. ANU SIVARAMAN,GOVERNMENT PLEADER-R3 ADV. SRI. T.R. HARIKUMAR -R1 ADV. SRI. V.G.ARUN- R1 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 04/09/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOTTATHIL B. RADHAKRISHNAN, J. ------------------------------ W.P(C). No. 26443 of 2008 ------------------------------ Dated this the 4th day of September, 2008 JUDGMENT Having regard to the nature of order being issued hereunder, notice to second respondent is dispensed with, preserving his right to move for review of this judgment, if aggrieved. Adv. Sri. T.R. Harikumar, appears for the first respondent. The learned senior Government Pleader appears for the third respondent. 2. The second respondent created a mortgage on an item of property, to the first respondent in 1995 and obtained a loan on the support of that security interest. He, thereafter, sold a portion of that to the petitioner as per Exhibit P1 in 1998. The writ petitioner does not disclose any personal relationship between him and the second respondent, though I am not, as at present, advised to draw an inference that they are totally strangers. The second respondent was further permitted by the petitioner to continue in possession of the residential building, even after Exhibit P1 sale. Going by the records, the petitioner filed a petition before the Rent Control Court and obtained WP(C). No. 26443/2008 Page numbers an order of eviction of the second respondent. In the course of execution of that order, first respondent creditor unsuccessfully prosecuted a claim before that court. It is stated that said order has become final. Having regard to the quality of the security interest, the petitioner can only claim to be the transferee of a part of the equity redemption. Within the realm of law relating to mortgages, he may have the right to redeem. In the interest of the first respondent creditor which deals with public fund, it has to reach at its lawful rights and has to ensure that the execution proceedings in terms of the award are immediately enforced. Being a security interest, the first respondent has also other remedies. 3. Be that as it may, the grievance, if any, of the petitioner would stand redressed, if the bank proceeds against the entire hypothica as a single lot or at least in different lots simultaneously. This is only to exclude any allegation that the first respondent Co-operative Bank has attempted to help out the second respondent by confining the recovery proceedings to be exclusively as against the equity of redemption available with the petitioner . WP(C). No. 26443/2008 Page numbers In the aforesaid circumstances, this writ petition is ordered directing that the first respondent will proceed with further action as against the entire hypothica either in a single lot or simultaneous in different lots. It is also clarified that this judgment does not touch on first the respondent's right to invoke the provisions of the SARFAESI Act, as pointed out by the learned counsel for the first respondent. This Writ Petition is ordered accordingly. THOTTATHIL B. RADHAKRISHNAN JUDGE skr