IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON TUESDAY, THE 16TH JUNE 2009 / 26TH JYAISHTA 1931 WP(C).No. 13636 of 2009(Y) --------------------------------------- PETITIONER(S): ------------------------ B. SOMASEKHARAN NAIR, M/S. OMKARA MARKETING ASSOCIATION, MANGALA , MNRA 147, EROOR WEST.P.O, THRIPUNITHURA. BY ADV. MR.V.K.SUNIL RESPONDENT(S): ------------------------- 1. THE UCO BANK, REPRESENTED BY ITS REGIONAL MANAGER, THIRUVANANTHAPURAM. 2. THE MANAGER, UCO BANK, WELLINGTON ISLAND BRANCH, KOCHI. 3. THE AUTHORISED OFFICER UNDER THE SARFESI ACT, UCO BANK, M.G. ROAD, RAVIPURAM. ADV. MR.GEORGE KARITHANAM VARGHESE FOR R2 MR.V.J.JOHN MR C.I.ABRAHAM MR.JOSE KURIAKOSE. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 16/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.R.RAMACHANDRA MENON, J. ----------------------------------------------- WP(C) NO. 13636 OF 2009 ----------------------------------- Dated this the 16th day of June, 2009 JUDGMENT The petitioner has approached this Court, mainly challenging the action pursued by the respondent Bank under the relevant provisions of the SARFAESI Act. The petitioner has made several allegations against the officers of the Bank in connection with the loan transaction. The main contention is that, amounts from the loan account of the petitioner have been diverted by the officers of the Bank to some other accounts and that the steps are being pursued by the Bank to cover up such illegal transactions made without any authority or instructions given by the petitioner and that he has already approached the investigating agencies in respect of the offence committed by the Bank as well as their officers. 2. The 'Modus Operandi' of the petitioner after availing loan from different branches of the Bank causing creation of equitable mortgage over the property of third parties and the diversion of funds from one account to another account, has been explained by the respondent Bank in the counter affidavit filed from their side. Reference is made to the various proceedings including Ext.R2(a), account in the name of WPC NO.13636/2009 2 Smt.V.V.Rajalakshmi which was opened as introduced by the petitioner; to which account, the amount was transferred on the basis of the telephonic instruction given by the petitioner. The petitioner has also admitted the liability to the Bank as evident from Ext.R2(b) and also R2(c) which are dated 06.10.2008 and R2(d) dated 10.03.2008. The case of the respondent Bank is that, after admitting the liability, the petitioner chose to take 'U turn' by approaching this Court, suppressing the material facts and also trying to distort the sequence of events, raising false allegations against the officers of the Bank. 3. It is brought to the notice of this Court that, the petitioner had approached this Court earlier as well, raising similar allegations against the officers of the Bank, also alleging fraud in the transactions in connection with another loan account maintained by the petitioner. The said matter was considered and disposed of as per judgment dated 13.02.2009 passed by this Court in WP(C) No. 4820/2009, whereby it was specifically observed as follows:- The petitioner shall pay the amount demanded by the respondents under protest pending further investigation into the allegations made by the petitioner. On payment of the amount, the respondents shall forthwith release the title deeds of the property of the petitioner deposited as security for the repayment of the loan amount, forthwith. The payment would be subject to the investigation, if any, requested for by the petitioner, by the appropriate authorities and if, ultimately, any amounts are found WPC NO.13636/2009 3 due to the petitioner, the Bank would be liable to refund the same to the petitioner. It would be open to the petitioner to approach the appropriate authorities for an investigation into the allegations of fraud made by petitioner. The course now being pursued by the petitioner cannot but be deprecated; particularly when the petitioner has not mentioned anything about WP(C) 4820/2009 and as to the judgment passed by this Court much earlier. In view of the above judgment declining interference on merit, observing that the rights and remedies of the petitioner lay elsewhere and in view of the further direction given to deposit the entire amount as demanded by the Bank, this Court does not find it necessary to deviate from the course already prescribed by this Court in the said Writ Petition. 4. In the above circumstances, interference is declined except to the extent that, in case the petitioner satisfies the amount demanded by the respondent Bank, pending further investigation, it will be for the respondent Bank to release the title deeds of the property concerned to the persons who have created equitable mortgage over the same. This is more so in view of the fact that all the loans, according to the Bank, have been secured by creating equitable mortgage over the properties belonging to the 'third parties'. Since the property concerned in the present case is stated as belonging to one Mr. Unnikrishnan who has issued Ext.R2(c) letter to the Bank pointing out the clandestine deals pursued by the WPC NO.13636/2009 4 petitioner, on satisfaction of the entire liability, the title deed shall be released only to such person who created the equitable mortgage over the property. 5. Learned counsel appearing for the petitioner submits that, in respect of the present loan transaction, the petitioner is ready and willing to clear the entire liability, provided some breathing time is given in this regard. In the said circumstance, the petitioner is directed to deposit a sum of Rs.10,00,000/- on or before the 30th of July, 2009 and the remaining amount as mentioned in Ext.P3 shall be paid within a further period of one month thereafter. On such an event, all further coercive steps taken against the petitioner shall be kept in abeyance. The Writ Petition is disposed of accordingly. P.R.RAMACHANDRA MENON JUDGE dnc