IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN THURSDAY, THE 16TH OCTOBER 2008 / 24TH ASWINA 1930 WP(C).No. 18820 of 2008(M) -------------------------------------- CMP.18449/2007 OF CHIEF JUDICIAL MAGISTRATE COURT,KOLLAM .................... PETITIONER: ----------------- K.KRISHNAMMA, AGED 74, D/O.LATE KOCHUPILLAI, RESIDING AT PUTHENVEEDU ALSO KNOWN AS THOKKAZHIKATHU PUTHEN VEEDU, THEKKEVILLACHERRY, ERAVIPURAM VILLAGE, KOLLAM TALUK, KOLLAM DISTRICT. BY ADV. SRI.VARGHESE C.KURIAKOSE SRI.PRAVEEN K. JOY RESPONDENTS: ---------------------- 1. STATE OF KERALA, REPRESENTED BY SECRETARY, MINISTRY OF FINANCE, TRIVANDRUM. 2. PNB HOUSING FINANCE LTD., THIRUVANANTHAPURAM BRANCH, CAPITAL TOWERS, STATUE, THIRUVANANTHAPURAM. 3. S.SAJU, THEKKAZHIKATHU HOUSE, ERAVIPURAM P.O., KOLLAM. 4. SMT.SHAGI, W/O.S.SAJU, THEKKAZHIKATHU HOUSE, ERAVIPURAM P.O., KOLLAM. R1 BY GOVERNMENT PLEADER SRI.I.V.PRAMOD R2 BY ADV. SRI.R.S.MOHANAN NAIR THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 16/10/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO. 18820/2008-M APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE ORDER DATED 11/03/08 IN WRIT APPEAL NO.428/08 OF THE DIVISION BENCH. EXT.P2: COPY OF THE PARTITION DEED NO.2829 DATED 09/06/1953 OF SRO, KOLLAM. EXT.P3: COPY OF THE O.S.NO.240/06 OF MUNSIFF'S COURT, KOLLAM. EXT.P4: COPY OF THE C.M.P.NO.18449/07 OF CHIEF JUDICIAL MAGISTRATE COURT, KOLLAM. EXT.P5: COPY OF THE APPLICATION FOR IMPLEADING IN C.M.P. NO.18449/07 OF CHIEF JUDICIAL MAGISTRATE COURT, KOLLAM. EXT.P6: COPY OF THE APPLICATION FOR STAY IN C.M.P.NO.18449/07 OF CHIEF JUDICIAL MAGISTRATE COURT, KOLLAM. EXT.P7: COPY OF THE APPLICATION FOR DECIDING THE QUESTION OF JURISIDICTION IN C.M.P.NO.18449/07 OF CHIEF JUDICIAL MAGISTRATE COURT, KOLLAM. RESPONDENT'S EXHIBITS: EXT.R2(a): COPY OF THE SALE DEED NO.3269/2004 REGISTERED IN SRO, ERAVIPURAM IN FAVOUR OF THE BORROWER, S.SAJU (3RD RESPONDENT) //TRUE COPY// P.S. TO JUDGE Rs/ THOTTATHIL B. RADHAKRISHNAN, J. = = = = = = = = = = = = = = = = = = = = = = = = W.P.(C).No.18820 of 2008-M = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 16th day of October, 2008. JUDGMENT 1.Respondents 3 and 4 availed a house purchase loan of Rs.15 lakhs from the second respondent. They did not repay that amount. This resulted in proceedings under the SARFAESI Act being initiated by the creditor. The petitioner states that she is in possession of the property in question and has filed this writ petition. 2.The uncontroverted averment in paragraph 5 of the counter affidavit is that the petitioner had colluded with the third respondent and had filed O.S.240/2006 and O.S.542/2007 before the Munsiff's Court, Kollam and O.S.No.240/2006 was later withdrawn by her and I.A.3135/2007 in WP(C)18820/08 -: 2 :- O.S.542/2007 was dismissed by the learned Munsiff. The fact that the subject matter of those two suits is directly and substantially the same is not in dispute. It is further pointed out in paragraph 6 of the counter affidavit that the petitioner had filed WP(C).8177/2007 in which no stay was granted and that she did not comply with the interim order passed in this writ petition. 3.This writ petition is filed utilizing the situation where the Division Bench was in seizin of an issue relatable to the jurisdiction of the Chief Judicial Magistrates under Section 14 of the SARFAESI Act. That no more survives the judgment of the Division Bench delivered on 13th August, 2008 in W.A.No.428/2008 and connected matters. I do not, therefore, find any ground to issue any order. The writ petition is dismissed. Though, having regard to the facts and circumstances, I am inclined to pass an order of cost against the petitioner, taking into consideration the fact WP(C)18820/08 -: 3 :- that she claims to be an elderly lady of 74 years, I deter from doing so. THOTTATHIL B. RADHAKRISHNAN, JUDGE. Sha/171008