IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM THURSDAY, THE 10TH FEBRUARY 2011 / 21ST MAGHA 1932 WP(C).No. 33420 of 2010(B) --------------------------------------- PETITIONER(S): ----------------------- N.K. THANKAPPAN, AGED 75 YEARS, S/O. KUNJU PILLAI ACHARI, RESIDING AT KARTHIYAYANI MANDIRAM, MULAMKADAKOM, THIRUMULLAVARAM CHERRY, THIRUMULLAVARAM P.O., KOLLAM-691 012. BY ADV. SRI.JOHNSON GOMEZ RESPONDENT(S): -------------------------- 1. THE AUTHORIZED OFFICER, THE QUILON CO-OPERATIVE URBAN BANK LTD.NO.960, HEAD OFFICE, KOLLAM, PIN-691 001. 2. R.K. MINI, D/O. RADHA BHAI AMMA, MINI BHAVAN, MANAYILKULANGARA CHERRY, THIRUMULLAVARAM P.O., KOLLAM-691 012. R1 BY SRI.N.DHARMADAN, SENIOR ADVOCATE, ADV. SMT.D.P.RENU. R2 BY ADV. SRI.E.M.MURUGAN. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 10/02/2011,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs C.K.ABDUL REHIM, J --------------------------------------- W.P(C) No.33420 of 2010-B ---------------------------------------- Dated this the 10th day of February, 2011. J U D G M E N T Petitioner claims right over certain immovable properties by virtue of an alleged mortgage created by the 2nd respondent. But, admittedly, the 2nd respondent had already created a mortgage on the very same property in favour of the 1st respondent Bank, for the purpose of securing a loan availed by her. Consequent to default committed by the 2nd respondent in repayment of the loan proceedings under the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI Act) was initiated and the 2nd respondent had challenged such actions before this Court by filing W.P (C) No.29277 of 2008. The said case was ultimately decided by a Division Bench of this Court in W.A.No.813 of 2009, through Ext.P9 judgment. The 2nd respondent had agreed to pay off the liability due to the 1st respondent by depositing a sum of Rs.50,000/- on or before 30th June 2009 and to pay W.P(C) No.33420 of 2010-B 2 the balance amount on or before 31st July 2009. On such remittance the 1st respondent was directed to consider the application of the 2nd respondent for rescheduling the loan. But the 2nd respondent failed to comply with the undertaking made before this Court. However, it is stated that he had effected payments of certain amounts. 2. Consequent to failure on the part of 2nd respondent in complying with the conditions stipulated in Ext.P9, steps under Section 14(1) was pursued by the the 1st respondent. An Advocate Commissioner was appointed by the Chief Judicial Magistrate Court, Kollam to take over possession of the property. Ext.P4 is the report submitted by the Advocate Commissioner. It is stated that when steps taken for eviction was taken, the petitioner herein, who was in occupation of the property, had remitted a sum of Rs.1,20,000/- and accordingly eviction of the petitioner was deferred. It is stated that even thereafter the petitioner had effected payments as evidenced from Exts.P6 and P7. 3. Case of the petitioner is that the property in W.P(C) No.33420 of 2010-B 3 question was mortgaged by the 2nd respondent without disclosing the liability due to the 1st respondent and the petitioner had paid a sum of Rs.2,50,000/-. It is also stated that, subsequent payments were also made by the petitioner to the 2nd respondent. If the petitioner is evicted from the property by virtue of the proceedings now initiated, he will be put to severe prejudice, since huge amounts were already paid to the 2nd respondent, is the contention. 4. It is pertinent to note that the petitioner is a total stranger as far as the loan transaction is concerned. Any claim or rights accrued on the petitioner based on the alleged transaction between the petitioner and the 2nd respondent is admittedly created only after the mortgage came into existence in favour of the 1st respondent Bank. Therefore rights of the 1st respondent arising out of such mortgage will not be affected by any such subsequent transactions. Under such circumstances, the petitioner could not interdict in any manner with the proceedings now initiated by the 1st respondent under the provisions of the W.P(C) No.33420 of 2010-B 4 SARFAESI Act. Therefore, I am of the view that the writ petition deserves no merit and the same is liable to be dismissed. 5. It is pointed out by learned counsel for the petitioner and the 2nd respondent that, subsequent to filing of this writ petition considerable payments were effected. Both of them undertake that the entire liability due to the 1st respondent Bank will be discharged within a short time and on that premise they undertake that they are relinquishing all challenges raised against the proceedings initiated under the SARFAESI Act. On the other hand, a limited prayer is made to direct the 1st respondent to keep in abeyance all further coercive steps for dispossession and sale of the property, on the basis of an undertaking that the entire balance will be remitted within a short period. 6. Eventhough I find no merit in any of the contentions raised, considering the limited prayer I am of the view that indulgence can be shown in permitting the petitioner and the 2nd respondent to pay off the liability, W.P(C) No.33420 of 2010-B 5 within a short period. 7. Therefore, the writ petition is disposed of directing the 1st respondent to keep in abeyance all further steps for dispossession and sale of the property, subject to condition of the petitioner or the 2nd respondent remitting the entire liability due to the 1st respondent on or before 15.3.2011. 8. It is made clear that on the event of default, in complying with the condition as stipulated above, the 1st respondent Bank will be at liberty to proceed with further steps on the basis of the order already issued by the Chief Judicial Magistrate Court. It is also made clear that the petitioner as well as the 2nd respondent will be restrained from raising any subsequent challenge against such proceedings. C.K.ABDUL REHIM JUDGE ab