IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM WEDNESDAY, THE 30TH MARCH 2011 / 9TH CHAITHRA 1933 WP(C).No. 35033 of 2010(D) ------------------------- PETITIONER : -------------------- SULFICKER, S/O. MYTHEEN KANN, SULFICKER MANZIL, GANDHI NAGAR, ALAMCODE, PANGAPPARA PO., THIRUVANANTHAPURAM. BY ADV. SRI.K.P.SUJESH KUMAR RESPONDENT(S): ------------------------- 1. UCO BANK , OVER BRIDGE JUNCTION, THAMPANOOR, THIRUVANANTHAPURAM, REPRESENTED BY ITS BRANCH MANAGER - 695 001. 2. AUTHORISED OFFICER AND CHIEF MANAGER, UCO BANK, KOLLAM - 691 001. 3. M/S. SRIVINDIA POLY FILMS PRIVATE LIMITED, TC 27/1952-1, THUMBRA LANE, CHIRAKULAM ROAD, THIRUVANANTHAPURAM, REPRESENTED BY ITS MANAGING DIRECTOR - 695 001. 4. ABDUL SALAM, KODEYIL VEEDU, SASTHAMCOTTA PO., SASTHAMCOTTA, KOLLAM 691 001. R1 & R2 BY ADV. SRI.GEORGE KARITHANAM VARGHESE, SC, UCO BANK R4 BY ADVS. SRI.N.K.MOHANLAL SRI.M.K.ABDULLA (MANADATH) THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 30/03/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Mn C.K.ABDUL REHIM, J. ------------------------------- W.P.(C) No.35033 of 2010 ------------------------------- Dated this the 1st day of September, 2011. J U D G M E N T It is brought to notice of this Court that the petitioner is the guarantor and the property belonging to him, which was mortgaged for securing the loan, was sold in auction for a sum of Rs.53 lakhs. It is conceded by the petitioner as well as respondents 1 and 2, that the petitioner had now deposited a sum of Rs.25 lakhs in the loan account and a further sum of Rs.28 lakhs in a Savings Bank Account, in the same Bank. Learned counsel for the petitioner submits that the petitioner has no objection in appropriating the amount deposited in the SB Account, against arrears in the loan account, provided the respondent Bank releases the property from the mortgage. 2. Inspite of service of notice from this Court, nobody enters appearance on behalf of the 3rd respondent, who is the borrower company. Learned counsel appearing for the 4th respondent/auction bidder submits that he had already deposited 25% of the bid amount as early in the month of W.P.(C).35033/10 -2- March 2011 and that the balance amount was not deposited due to pendency of this writ petition and due to the interim orders issued on various dates. 3. Considering the equitable relief sought for by the petitioner, I am of the view that he being the guarantor, it is only just and proper to afford him an opportunity to redeem the mortgage, on payment of the value of the property in question. Since he had deposited the entire bid amount, for which the property was auctioned and since it is noticed that the bidder had deposited only 25% of the amount till date, I am of the view that, indulgence can be shown in permitting redemption of the mortgage. This is especially because the sale in question is not yet confirmed and no sale certificate is issued. 4. Under the above mentioned circumstance, the writ petition is disposed of permitting respondents 1 and 2 to appropriate the amount of Rs.28 lakhs deposited by the petitioner in the SB Account, against the loan account. The petitioner should also make payment of interest on the deposit made by the 4th respondent (25% of the bid amount)@ 12% p.a. from the date of deposit till the date of refund. If the petitioner makes deposit of the said amount, within a period of 2 (two) W.P.(C).35033/10 -3- weeks from today, the respondents 1 and 2 shall treat the sale as cancelled and refund the amount in deposit to the 4th respondent, along with the interest payable at the above mentioned rate. On such event, the property under mortgage shall be released to the petitioner, threfore, without any further delay. 5. It is made clear that, respondents 1 and 2 will be at liberty to proceed for realisation of the balance amount due under the loan account, against the assets of the 3rd respondent company and also against its Directors personally. The writ petition is disposed of with the above directions. C.K.ABDUL REHIM, JUDGE ami/