IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT :- THE HONOURABLE THE CHIEF JUSTICE MR.H.L.DATTU & THE HONOURABLE MR. JUSTICE A.K.BASHEER WEDNESDAY, THE 26TH NOVEMBER 2008 / 5TH AGRAHAYANA 1930 WA.No.2199 of 2008 --------------------------------- AGAINST THE JUDGEMENT IN WPC.No.32022/2008 Dated 30/10/2008 .................... APPELLANT/PETITIONER:- ------------------------------------ N.K.ABDUL LATHEEF, S/O.ABOBACKER HAJI, WHITE ROSE, IRINGAL, VATAKARA VIA., CALICUT DISTRICT, PIN- 673521. BY ADV. SRI.JIJO PAUL RESPONDENTS/RESPONDENTS:- ---------------------------------------------- 1. VIJAYA BANK, CHALAPPURAM BRANCH, INDUS AVENUE, KALLAI ROAD, CALICUT-673 002. REP. BY ITS SENIOR BRANCH MANAGER. 2. VIJAYA BANK, INDUS AVENUE, KALLAI ROAD, CALICUT-673002, REP. BY ITS PRINCIPAL OFFICER. BY STANDING COUNSEL SRI.K.ANAND. THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 26/11/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: H.L.DATTU, C.J. & A.K.BASHEER, J. ----------------------------------------------------- W.A.No.2199 of 2008 ---------------------------------------------- Dated, this the 26th day of November, 2008 JUDGMENT H.L.Dattu, C.J. Aggrieved by the orders passed by the learned Single Judge in W.P.(C) No.32022/2008 dated 30.10.2008, the petitioner in the writ petition has presented this writ appeal. 2. In the writ petition filed, the petitioner had called in question the proceedings initiated by the respondents under the provisions of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (“ SARFAESI Act ” for short) by issuing Ext.P5 notice under Section 14 of the SARFAESI Act appointing an Advocate Commissioner to take possession of the property offered as security. 3. The learned Single Judge being of the opinion that, the petitioner had not complied with the earlier orders passed by this Court and also the interim order passed in the writ petition, has rejected the writ petition. That is how the petitioner is before us in this writ appeal. 4. The petitioner claims that he is the Power of Attorney Holder of all the legal representatives of late N.K.Mahamood who had W.A.No.2199/2008 -2- availed loan from the respondent Bank. 5. The appellant has filed an affidavit before this Court and that affidavit is signed by all the legal representatives of late N.K.Mahamood and all the persons who stood as sureties when late N.K.Mahamood availed the loan from the respondent Bank. 6. The affidavit filed by the appellant and the legal representatives of late N.K.Mahamood is as under: “We, (1) N.K.Abdul Latheef, S/o.Aboobacker Haji, aged 43 years, residing at 'White Rose', Iringal, Vatakara (via), Calicut District, Pin-673 521, (2) N.K.Abdul Gafoor, S/o.Aboobacker Haji, aged 43 years, Grace, Iringal P.O., Koyilandi Taluk, Kozhikoide District, (3). P.P.Aboobacker, S/o.Abdulla Musaliar, aged 78 years, residing at Nagathan Kavil house, Iringal P.O., Koyilandi Taluk, Kozhikode District, (4) Sara T., W/o.Abdul Gafoor, aged 35 years, residing with him, (5) P.Abdul Khader, S/o.Abdul Rahman, aged 40 years, Hira House, Velur West Post, Atholy, Kozhikode District (6) K.P.Noushad, S/o.K.P.Mahamood, aged 41 years, Nabeesa Mahal, Kanapurath House, Iringal P.O., Koyilandi Taluk, Kozhikode District, (7) Naseema, aged 35 years, W/o.K.P.Noushad, residing with him, (8) M.T.Mahamood, aged 62 years, Naseema Manzil, Iringal P.O., Koyilandi Taluk, Kozhikode District, (9). Kunhipathu, aged 58 years, W/o.M.T.Mahamood, residing with him, (10) K.K.Sreeja, D/o.Nalini, aged 45 years, Madollathil house Vatakara P.O, Vadakara Taluk, Kozhikode District, (11) N.K.Jaseela, D/o.N.K.Mohammed, aged 27 years, N.K.Cottage, Iringal P.O., Koyilandi Taluk, Kozhikode District, and (12) N.K.Sabira, D/o. N.K.Mohammed, aged 23 years, N.K.Cottage, Iringal P.O., Koyilandi Taluk, Kozhikode W.A.No.2199/2008 -3- District, do hereby solemnly affirm and state as follows: The first among us is the appellant in the above Writ Appeal. When the above matter came up for admission on 12.11.2008, this Hon'ble Court directed the defaulters, who are challenging the taking of possession of the properties to file affidavits. Nos 2 to 12 among us, have executed power of attorney in favour of Sri.N.K.Abdul Latheef, the appellant herein (who is number one among us) nominating him as our lawful attorney, for us, in our names and on our behalf and to execute all of the matters specified in the power of attorney. The power of attorney is on record in the instant proceedings as Exhibit P1 (in the writ petition). In pursuance to the directions of this Hon'ble Court, as above said, we the deponents hereunder undertake as follows:- 1). We will not obstruct the taking of possession of the properties shown as serial Nos.1 to 4, 6, 10 & 11 in Annexure A. 2). We will not challenge the sale of the properties shown as serial Nos.1 to 4, 6, 10 & 11 in Annexure A in any Court or Forum. 3). After the sale of the properties shown as serial Nos.1 to 4, 6, 10 & 11 in Annexure A, the auction purchasers will be entitled to possess the properties and, we will not obstruct or interfere with their possession. 4). In the event of the sale proceeds from the sale of properties shown as serial Nos.1 to 4, 6, 10 & 11 in Annexure A becoming insufficient to wipe off the dues towards the respondent Bank in the transaction in question in the above Writ Appeal, we will hand over vacant possession of the properties shown as serial W.A.No.2199/2008 -4- Nos.5, 7, 8 and 9 without demur, resistance or obstruction. 5). Nos.11 and 12 among us are the legal heirs of deceased N.K.Mohammed. The only other legal heir of his is N.K.Jafar. He is now in Qatar and is therefore, unavailable to sign this affidavit. However, he has executed Exhibit P1 power of attorney in favour of the Ist among us and is bound by the actions taken by the power of attorney on his behalf. The power of attorney, the first among us swears to this affidavit on his personal behalf and also on behalf of the said N.K.Jafar.” 7. In the affidavit filed, the signatories to the affidavit have undertaken that they will not obstruct the respondent Bank in taking possession of the properties shown as Serial Nos.1 to 4, 6, 10 & 11 in Annexure A. They have also stated that they will not challenge the sale of the properties shown as Serial Nos. 1 to 4, 6, 10 & 11 in any Court or any Forum. Further, they have stated that, after the sale of the properties shown as Serial Nos. 1 to 4, 6, 10 & 11 in Annexure A, the auction purchasers will be entitled to take possession of the properties and they will not obstruct or interfere with their possession. Lastly, they have stated that, in the event of the sale proceeds from the sale of properties shown as Serial Nos.1 to 4, 6, 10 & 11 in Annexure A becoming insufficient to wipe off the dues towards the respondent Bank in the transaction in question, they will hand over vacant possession of the W.A.No.2199/2008 -5- properties shown as Serial Nos.5, 7, 8 and 9 without any demur, resistance or obstruction. 8. Taking into consideration the unequivocal undertaking given by the appellant, the legal representatives of late N.K.Mahamood who had availed the loan, and the sureties, we are opinion that, for the present, the respondent Bank need not have to take possession of the properties shown as Serial Nos.5, 7, 8 and 9. If, for any reason, after selling the properties in Serial Nos.1 to 4, 6, 10 & 11, the respondent Bank does not realise the entire amounts due to them from the appellant, the legal representatives of late N.K.Mahamood and the sureties, they can direct the appellant and others to hand over the properties shown as Serial Nos.5, 7, 8 and 9. 9. We also make it clear that, if, for any reason, the respondents are not in a position to take possession and sale of the properties mentioned in Serial Nos.1 and 2, they will inform the same to the appellant and thereafter direct the appellant to hand over the properties shown as serial Nos. 5, 7, 8 and 9. 10. In view of the undertaking given by the appellant and others, including sureties, in our opinion, the writ appeal requires to be disposed of by setting aside the orders passed by the learned Single W.A.No.2199/2008 -6- Judge. Accordingly, we allow the writ appeal to the extent we have mentioned in the earlier portion of our order. Ordered accordingly. (H.L.DATTU) CHIEF JUSTICE (A.K.BASHEER) JUDGE MS/dk.