IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN WEDNESDAY, THE 30TH JUNE 2010 / 9TH ASHADHA 1932 WA.No. 496 of 2010() -------------------- AGAINST THE JUDGEMENT/ORDER IN WPC.31631/2009 Dated 04/03/2010 .................... APPELLANT(S): PETITIONER ------------------------ SIVASANKARA PILLAI,S/O.SANKARA NARAYANA KURUP,PUTHENVEEDU,CHADAYAMANGALAM,KOTTARAKKARA TALUK,KOLLAM DISTRICT. BY ADV. SRI.ANCHAL C.VIJAYAN RESPONDENT(S): RESPONDENTS -------------------------- 1. THE DEPUTY TAHSILDAR(R.R), KOTTARAKKARA. 2. THE REGIONAL MANAGER, THE KERALA STATE SCHEDULED CASTE AND SCHEDULED TRIBE DEVELOPMENT CORPORATION, REGIONAL OFFICE, MANNANIA COMPLES, ANDAMUKKOM, KOLLAM. 3. UTHAMAN, ULLANNOOR VEEDU,AERAM, THADIKKADU PO, ANCHAL, KOLLAM DISTRICT. 4. RAJU,S/O.SIMON,MEKKONAMPARAVILA VEEDU, T.26/266.MUTTADA, KUDAPPANAKUNNU PO, THIRUVANANTHAPURAM(IST GRADE OPERATOR, KELTRON PROJECT,PEROORKADA,THIRUVANANTHAPURAM). R1 BY G.P. SRI. LAKSHMI NARAYANAN ADV. SRI.M.K.CHANDRA MOHANDAS FOR R2 THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 30/06/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: C .N. RAMACHANDRAN NAIR, & P.S. GOPINATHAN, JJ. -------------------------------------------- W. A. No. 496 of 2010 -------------------------------------------- Dated this the 30th day of June, 2010 JUDGMENT Ramachandran Nair, J. Appeal is filed against conditional interim order passed by the learned single Judge granting stay against recovery against the appellant who is a surety on condition of payment of Rs. 50,000/-. Counsel for the appellant has contended that already Rs. 50,000/- is paid by him and further amount should not be recovered from him because principal debtor lifted the hypothecation and issued NOC which helped the defaulter to sell the hypothecated vehicle to other parties. Even though counsel appearing for the second respondent submitted that Corporation has not given NOC and transfer if any made is without their knowledge, we find from paragraph 4 of the counter affidavit filed by the Corporation that Corporation is well aware of the transfers made by the principal debtor because it is clearly stated that vehicle has changed hands of several persons. Surprisingly the Corporation has not stated that such transfers referred to in the counter affidavit are in terms of the Motor Vehicles Act which requires NOC W.A. 496/2010 2 from the financier to permit transfer of the vehicle in the Registry. If Corporation has permitted transfer of vehicle by the defaulter without discharging liability certainly the person responsible for that should make up the loss to the Corporation and it is for the guarantor to claim immunity from payment. This is a serious matter which should be considered in the course of final hearing of the WPC. Since the appellant has already paid Rs. 50,000/- and Corporation prima facie has not taken any effective steps in time to recover the amount after default because loan is 15 years old, we feel appellant is entitled to absolute stay. Therefore we allow the appeal lifting the condition for the stay with regard to payment. In other words, unconditional stay will continue till the disposal of WPC. Second respondent will file a detailed statement explaining as to whether NOC was issued or not and if not to pursue against the principal debtor immediately. If required, learned single Judge can call for details from the RTO's office and get enquiry conducted through police about the whereabouts of the vehicle. Appellant's liability should be considered after looking into the W.A. 496/2010 3 complicity of the company officials in allowing sale of the vehicle which was hypothecated to it. Post the WPC before the learned single Judge. (C.N.RAMACHANDRAN NAIR) Judge. kk (P.S. GOPINATHAN) Judge. W.A. 496/2010 4