IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN THURSDAY, THE 28TH JANUARY 2010 / 8TH MAGHA 1931 WP(C).No. 24666 of 2009(C) ----------------------------------------- PETITIONER(S): ------------------------- ANIL KUMAR, S/O.LAKSHMANAN, EDEZHATH HOUSE, ELAKUNNAPUZHA, VYPIN,ERNAKULAM DISTRICT. BY ADVS. MR.R.O.MUHAMED SHEMEEM, SMT.NASEEHA SHEMEEM. RESPONDENT(S): --------------------------- 1. THE SECRETARY, KARETHEDAM CO-OPERATIVE BANK LTD, MAALIPURAM, VYPIN, ERNAKULAM. 2. THE REGISTRAR, CO-OP.SOCIETIES(GENERAL), ERNAKULAM. 3. PRAMEELA, W/O.THEKKEDATH GOPALAKRISHNAN, ELAKUNNAPPUZHA POST, VYPIN, ERNAKULAM. R1 BY ADV. MR.T.A.RAJAN R2 BY GOVERNMENT PLEADER MR. K.S. MOHAMMED HASHIM R3 BY ADVS.MR.DENIZEN KOMATH, MR.SHERRY J. THOMAS. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 28/01/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.24666/2009 C APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE REGISTERED ASSIGNMENT DEED NO.451/2009 DTD. 16/03/2009. P2: COPY OF THE LAWYER NOTICE4 DTD. 06/07/2009. P3: COPY OF THE CERTIFICATE OF ENCUMBRANCE OF PROPERTY DTD. 27/07/2009. RESPONDENT'S EXHIBITS: N I L /TRUE COPY/ P.A.TO JUDGE Kss K.SURENDRA MOHAN, J ........................................... WP(C).NO. 24666 OF 2009 ............................................ DATED THIS THE 28TH DAY OF JANUARY, 2010 JUDGMENT The petitioner is the owner of an item of immovable property, having an extent of 3.805 cents comprised in R.S.362/3 and 4 situate in Elankunnapuzha Village, Cochin Taluk. According to the petitioner, the property was purchased by a registered assignment deed No.451 of 2009 dated 16.3.2009 of Njarackal Sub Registry. A copy of the assignment deed dated 16.3.2009 has been produced as Ext.P1. 2. The third respondent, who is the previous owner of the property, had taken a loan from the first respondent bank by mortgaging the property. It is the case of the petitioner that though the entire loan amount has been repaid by the third respondent, the first respondent bank has not issued a release deed releasing the property from the encumbrance that was created. Though a notice was issued through the petitioner's lawyer, no action was taken. Therefore, he has approached this court for necessary directions. 3. The Secretary of the first respondent bank has filed a counter Wpc 24666/09 2 affidavit. In paragraph 4 of the counter affidavit, it is stated that the property had been mortgaged to the bank to secure a loan of Rs.20,000/- that was availed by the third respondent. It is further stated by the first respondent as follows:- “ The third respondent has closed the said loan account on 29.02.08 and got back all the documents given to the bank for availing the loan. She has not approached the bank for getting a release deed in respect of the above said loan. The release deed is given to the loanee for which the loanee has to approach the bank and to meet the required expenses for it. As the third respondent has not approached the bank for getting a release deed, the same was not given to her. Even now bank is willing and ready to execute the release deed to the 3rd respondent provided she approaches the bank and meet the expenses. The petitioner or any other person has no locus standi or right to insist the bank to get a release deed in respect of the loan availed by the 3rd respondent”. Wpc 24666/09 3 4. Thus, the bank is ready and willing to release the encumbrance over the property as no amount is due to the bank in respect of the loan transaction with the third respondent. The only objection of the bank is that third respondent has not approached the bank for such release of property. The counsel for petitioner submits that the relation of the petitioner with the third respondent is not so cordial and that is the reason why she was not co-operating to get the encumbrance in respect of the property released. 5. Since the first respondent bank admits that the petitioner is the owner of the property, it cannot be disputed that the petitioner has stepped into the shoes of the third respondent. The third respondent has been divested of her rights of ownership in respect of the property by executing Ext.P1 sale deed. In the above circumstances, an application for release of the encumbrance by the third respondent may not also be proper. At any rate, the request of the petitioner to the bank to execute necessary documents releasing the encumbrance over the property cannot be said to be without any authority. The counsel for the petitioner has submitted that the petitioner is willing to bear all Wpc 24666/09 4 the expenses for execution of a deed releasing the encumbrance over the property. In view of the above, the first respondent bank need not have any objection to execute a proper deed releasing the encumbrance over the property. 6. In view of the above, the first respondent bank is directed to execute necessary documents to release the encumbrance created in respect of the property covered by Ext.P1 sale deed within a period of three weeks from the date of receipt of a copy of this judgment. It is made clear that the expenses for execution of such documents shall be borne by the petitioner. K.SURENDRA MOHAN, JUDGE lgk