IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC MONDAY, THE 29TH AUGUST 2011 / 7TH BHADRA 1933 WP(C).No. 15683 of 2011(I) -------------------------- PETITIONER(S): -------------------- SEENA ANN JOSEPH, D/O.LATE JOSEPH JOSEPH, KADAMTHOTE HOUSE, OLASSA POST, AYMANAM VILLAGE, PERMANENTLY RESIDING WITH MOTHER MOLLY JOSEPH, KAROTTUPARA HOUSE MANIMALA POST, KOTTAYAM 686 543. BY ADV. SRI.P.KURUVILLA JACOB SMT.RAJI.P.JOY RESPONDENT(S): ------------------------- 1. THE CHIEF MANAGER AUTHORIZED OFFICER, STATE BANK OF INDIA, RAJESWARI COMPLEX, M.C.ROAD, PERUNNA, CHANGANACHERY 686 102. 2. THE STATE BANK OF INDIA RAJESWARI COMPLEX, M.C.ROAD, PERUNNA, CHANGANACHERY 686 102,REPRESENTED BY ITS GENERAL MANAGER. 3. THE ASSISTANT GENERAL MANAGER STATE BANK OF INDIA ,RAJESWARI COMPLEX, M.C.ROAD, PERUNNA, CHANGANACHERY 686 102. 4. THE MANAGER, STATE BANK OF INDIA THIRUNAKKARA BRANCH,KOTTAYAM-686001. ADV. SRI.R.S.KALKURA FOR R1 TO R4 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 29/08/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC NO.15683/11 APPENDIX PETITIONER'S EXHIBITS EXT.P1: TRUE COPY OF THE B.Sc. DEGREE CERTIFICATE DATED 16.11.2000 ISSUED TO PETITIONER FROM THE UNIVERSITY OF MADRAS. EXT.P2: TRUE COPY OF THE CERTIFICATE DATED NIL ISSUED TO PETITIONER BY THE DIRECTOR OF INTERNATIONAL SCHOOL OF MANAGEMENT STUDIES AT CHENNAI. EXT.P3: TRUE COPY OF THE U.S. VISA ISSUED TO PETITIONER FROM THE U.S. EMBASSY AT CHENNAI FOR THE PERIOD4.1.02 TO 3.1.07. EXT.P4: TRUE COPY OF PAGE-3 OF THE STUDENT COPY OF CRETIFICATE OF ELIGIBILITY FOR NON-IMMIGRANT (FI) STUDENT STATUS ISSUED FROM THE U.S. DEPARTMENT OF JUSTICE, IMMIGRTION AND NATURALIZATION SERVICE. EXT.P5: TRUE COPY OF THE DEATH CERTIFICATE DATED 28.7.07 ISSUED FROM THE REGISTRAR OF BIRTH & DEATH, AIYMANAM GRAMA PANCHAYATH ISSUED TO PETITIONER RELATING TO THE DEATH OF HER FATHER. EXT.P6: TRUE COPY OF PETITIONER'S LETTER DATED 24.1.07 FORWARDED TO 4TH RESPONDENT. EXT.P7: TRUE COPY OF PETITIONER'S LETTER DATED 16.10.07 FORWARDED TO 4TH RESPONDENT. EXT.P8: TRUE COPY OF FIRST RESPONDENT'S NOTICE DATED 30.06.09 ISSUED UNDER SECTION-13(2) OF THE SECURITIZATION ACT AND HANDED OVER TO PETITIONER'S MOTHER ON 5.1.11. EXT.P9: TRUE COPY OF PETITIONER'S REPLY DATED 4.3.11 FORWARDED TO FIRST RESPONDENT. EXT.P10: TRUE COPY OF PETITIONER'S LETTER DATED 8.3.11 FORWARDED TO 1ST RESPONDENT. EXT.P11: TRUE COPY OF 3RD RESPONDENT'S LETTER DATED 23.3.11 FORWARDED TO PETITIONER. EXT.P12: TRUE COPY OF PETITIONER'S REPLY DATED 2.4.11 FORWARDED TO 3RD RESPONDENT. EXT.P13: TRUE COPY OF THE JUDGMENT DATED 17.8.11 IN O.P.(C) NO.2713/2011 OF THIS HON'BLE COURT. WPC NO.15683/11 -2- 1ST RESPONDENT'S EXHIBITS EXT.R1(a): TRUE COPY OF THE EDUCATION LOAN SCHEME APPLICATON FORM SUBMITTED BY THE PETITIONER AND HER GUARDIAN. EXT.R1(b): TRUE COPY OF THE PROPOSAL FORM ALONG WITH THE RECOMMENDATIONS SANCTIONING THE LOAN OF RS.4 LAKHS DATED 31.1.2002. EXT.R1(c): TRUE COPY OF THE AGREEMENT OF LOAN DTED 31.1.2002 EXECUTED BY THE PETITIONER AND HER MOTHR MOLLY JOSEPH. EXT.R1(d): TRUE COPY OF THE STATEMENT OF ACCOUNT PERTAINING TO THE EDUCATIONAL LOAN ACCOUNT OF THE PETITIONER. EXT.R1(e): TRUE COPY OF THE LETTER DATED 3.1.2007 ISSUED BY THE GUARDIAN OF THE PETITIONER MOLLY JOSEPH TO THE BANK. EXT.R1(f): TRUE COPY OF THE WRITTEN STATEMENT IN O.S. 409/2006 OF THE SUB COURT, KOTTAYAM. EXT.R1(g): TRUE COPY OF THE JUDGMENT IN O.S. 409/2006 DATED 23.7.2009 OF THE SUB COURT, KOTTAYAM. //TRUE COPY// P.A. TO JUDGE Rp ANTONY DOMINIC, J. ================ W.P.(C) NO. 15683 OF 2011 ===================== Dated this the 29th day of August, 2011 J U D G M E N T Ext.R1(a) is the application made by the petitioner for an educational loan. Column 3 of the application form states that the amount of loan applied for is `4,00,000/-. Column 5 containing the repayment programme provides for repayment in 60 equated monthly installment of `6,700/- + interest from January, 2005. The loan was applied for, for the petitioner's higher studies in America for MBA and the petitioner's mother was the guarantor. Ext.R1(b) is the proposal form and Ext.R1(c) is the loan agreement between the parties. Accordingly, the loan was sanctioned and `3.64 lakhs was disbursed to the petitioner. Default was committed and finally Ext.P8 notice under Section 13 (2) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 was issued. It is at that stage the writ petition was filed mainly contenting that what was applied for by the petitioner was `15,00,000/- and only `3.64 lakhs was disbursed, and that, as a result of non disbursement of the balance, despite having completed the course, fee was not WPC No. 15683/11 :2 : paid and that as a result of which the University in America withheld the certificates of the petitioner. Therefore, according to the petitioner, she could not secure any employment. The relief sought for in this writ petition include a declaration that the petitioner is entitled to get the balance amount disbursed. 2. The Bank has filed a counter affidavit producing Exts.R1(a) to Ext.R1(c) and also Ext.R1(e), a letter of the petitioner's mother. Ext.R1(f) is the written statement filed by the petitioner's mother in OS No.409/06 before the Sub Court, Kottayam. 3. As already seen, the case of the petitioner is that the petitioner and her mother had applied for a loan of `15,00,000/- and that despite having sanctioned the full amount, only `3.64 lakhs was disbursed and that therefore the balance should be asked to be disbursed by the Bank. The specific case of the Bank is that the amount of loan applied for was `4,00,000/- and that the sanctioned amount of `3.64 lakhs has been disbursed to the petitioner. Ext.R1(a), (b) and (c) prima facie substantiate this contention of the Bank. Ext.R1(e) letter of the petitioner's mother also states that the education loan applied for was `4,00,000/-. In WPC No. 15683/11 :3 : the written statement also, statement to the similar effect has been made by the petitioner's mother. While the petitioner confirms her signature in Ext.R1(a) and (c), petitioner alleges that although her original application was for `15,00,000/-, most of the portions of the application form and the proposal form have been subsequently manipulated to suit the conversion now canvassed by the Bank. Similarly, in so far as Ext.R1(e) letter of her mother and Ext.R1(f) statement filed in the suit also is sought to be explained by the petitioner by contending that what is referred to therein is the first installment of loan received by the petitioner. 4. Essentially therefore, the question that emerges for consideration is whether the loan applied for by the petitioner was for `15,00,000/- as contended by the petitioner or whether it is `4,00,000/- as contended by the Bank. In my view, having regard to the nature of the documents that are available, it is totally a disputed question of fact, the resolution of which needs appreciation of evidence, which is both documental and oral. Such an adjudication is impermissible in a proceedings under Article 226 of the Constitution of India and the remedy if at all lies before a Civil Court. WPC No. 15683/11 :4 : In that view of the matter, leaving open all the contentions raised and without expressing anything on the merits, I dismiss this writ petition with liberty to the petitioner to approach the Civil Court to get the disputed question resolved in an appropriate suit. ANTONY DOMINIC, JUDGE Rp