IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON TUESDAY, THE 2ND JUNE 2009 / 12TH JYAISHTA 1931 WP(C).No. 14299 of 2009(F) ------------------------------------- PETITIONER(S): ----------------------- PRAMOD.L.S, AGED 48 YEARS, S/O. LAZAR NADAR, KUZHIYAVILA BETHLEHAM, VAZHAVATHOOR DESOM, NEYYATINKARA VILLAGE, NEYYATINKARA TALUK, THIRUVANANTHAPURAM. BY ADV. MR.KRISHNADAS P. NAIR MR. HARIDAS P.NAIR MR.K.L.SREEKALA MR.M.A.VINOD M.RAJESH KUMAR RESPONDENT(S): ------------------------ 1. THE HONKONG AND SHANGHAI BANKING CORPORATION LTD., P.O. BOX NO. 2244, VELLAYAMBALAM, THIRUVANANTHAPURAM- REPRESENTED BY ITS MANAGER. 2. WILFRED JOSE DENNISON LILLYBAI, KUNNUVILLA VEEDU, THOZHUKAL, NEYYATINKARA, THIRUVANANTHAPURAM. 3. THE DISTRICT COLLECTOR, COLLECTORATE, THIRUVANANTHAPURAM. 4. THE TAHSILDAR, NEYYATINKARA TALUK, THIRUVANANTHAPURAM. 5. THE VILLAGE OFFICER, PERUMPAZHUTHOOR VILLAGE, NEYYATINKARA TALUK, THIRUVANANTHAPURAM. BY ADV. MR.KKM.SHERIF FOR R1 BY GOVT. PLEADER MR.BIJOY CHANDRAN FOR R3 TO R5 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 02/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.R. RAMACHANDRA MENON, J. ........................................................................ W.P.(C) No. 14299 OF 2009 ......................................................................... Dated this the 2nd June, 2009 J U D G M E N T The petitioner has approached this Court challenging the Securitisation proceedings pursued by the first respondent-Bank, invoking the relevant provisions under the SARFAESI Act. 2. The case of the petitioner is that the property in question is not connected with any transaction with the first respondent, as the petitioner had at no point of time, availed any loan facility from the first respondent Bank. It is stated that the concerned property was purchased by the petitioner from the second respondent on 22.09.2003, as per Ext.P4 sale deed bearing No.1824 of 2003 produced along with I.A.No. 6330 of 2009. It is the further case of the petitioner that he has already filed a civil suit as O.S.No.88 of 2009 before the Sub Court, Neyyattinkara against the first and second respondents for restraining the defendants, particularly the first respondent, from W.P.(C) No. 14299 OF 2009 2 entering into the plaint schedule property and that the case is still pending. 3. The respondent Bank has filed a statement contending that the version put forth by the petitioner is wrong and that it is an instance of deliberate misrepresentation. The property concerned was actually owned, possessed and enjoyed by the second respondent, who in turn had deposited the title deed of the same by creating equitable mortgage in connection with a loan obtained from the Bank way back in 2003. A copy of the sale deed bearing No.1425 of 2003 dated 22.09.2003 in favour of the second respondent has also been produced along with the statement as Ext.R1(a). A curious fact to be noted is that Ext. R1(a) sale deed in favour of the second respondent was executed by none other than the petitioner himself. The fact that the ownership of the property earlier vested with the petitioner, was later conveyed to the second respondent as per Ext.R1(a) sale deed dated 22.09.2003 is stated nowhere in the present Writ Petition. The learned counsel appearing for the first respondent submits, with reference to the contentions taken in the W.P.(C) No. 14299 OF 2009 3 statement, that the first respondent has obtained the Encumbrance Certificate for the period from 01.01.2000 to 09.01.2008 in respect of the concerned property, wherein the only transaction shown as registered in the S.R.O., Neyyattinkara is Ext.R1(a) sale deed dated 22.09.2003 executed by the petitioner in favour of the second respondent. The learned counsel further asserts that the submission made by the petitioner that he had obtained the property by virtue of the same sale deed bearing No.1824 of 2003 of the S.R.O., Neyyattinkara cannot be correct, in so far as the first respondent has applied for a certified copy of the said document and has obtained the same from the concerned S.R.O., which has been produced for perusal of this Court. This shows that the said sale deed pertains to some other property and it was executed in favour of one Hareendran and not in favour of the petitioner . 4. With regard to the sequence of events and as to the rights and interests of the first respondent Bank, it is pointed out that the second respondent had originally availed a loan of Rs. 32 lakhs from the first respondent on the strength of Ext. W.P.(C) No. 14299 OF 2009 4 R1(a) sale deed. Subsequently, when the second respondent turned to be a defaulter , coercive steps were taken by the Bank against him, which led to filing of W.P.(C) 7609 of 2008 by the second respondent leading to Ext.R1(c) judgment permitting the second respondent to wipe out the outstanding liability in 15 equal monthly instalments, commencing from April, 2008. Aggrieved by the said verdict, the second respondent had filed W.A.No. 918 of 2008, which ended in dismissal. Thereafter, the second respondent approached the DRT by filing S.A..214 of 2008, wherein an interim order was passed intercepting the coercive steps on condition that the second respondent (petitioner in S.A.214 of 2008) remitted 10% of the total arrears. Subsequently, on noting that the condition was not complied with, the said interim order was vacated by the DRT. It is thereafter that the petitioner has chosen to approach this Court by filing the present Writ Petition, stating that he is the owner of the property in question having obtained the same from the second respondent as per Ext. P4 sale deed. 5. The learned counsel for the petitioner failed miserably to W.P.(C) No. 14299 OF 2009 5 explain the incriminating circumstances, particularly as to the facts and circumstances as noted above. However, since the second respondent is not before this Court, no adverse observations are being made with regard to this point for the time being. The course and conduct pursued by the petitioner cannot but be deprecated in the strongest possible words . The Writ Petition fails and it is dismissed accordingly. P.R. RAMACHANDRA MENON, JUDGE. lk