IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON TUESDAY, THE 6TH JULY 2010 / 5TH ASHADHA 1932 WP(C).No. 35847 of 2009(A) -------------------------- PETITIONERS: --------------- 1. GRACY FRANCO, W/O.FRANCO, AGED 46 YEARS, SNEHAGEETHAM, NARIYAMPARAMBIL, KATTUSSERY, ALATHUR TALUK, PALAKKAD DISTRICT. 2. A.H.ABDUL KHADER, S/O.HUSSAIN RAWTHER, AGED 64 YEARS, CHOONDAKAD, KAVASSERY, ALATHUR TALUK, PALAKKAD DISTRICT. 3. H.SHOWKATHALI, S/O.HANEEFA RAWTHER, AGED 39 YEARS, PANDARAKAD, PUTHIYANGAM, ALATHUR TALUK, PALAKKAD DISTRICT. 4. PEETHAMBARAKSHAN G., S/O.LATE GOPALAN, AGED 42 YEARS, POONGODE, PUTHIYANGAM, ALATHUR TALUK, PALAKKAD DISTRICT. 5. C.ALAVUDDIN, S/O.CHELLAN RAWTHER, AGED 45 YEARS, CHUVATTUMPADAM, WADAKKANCHERRY, ALATHUR TALUK, PALAKKAD DISTRICT. 6. A.R.HAKKIM, S/O.ABDUL REHMAN, AGED 34 YEARS, CHUNDAKAD, KAVASSERY, ALATHUR TALUK, PALAKKAD DISTRICT. 7. A.NAZAR, S/O.LATE ABDUL KHADER, AGED 44 YEARS, VANUR ROAD, KATTUSSERY, ALATHUR TALUK, PALAKKAD DISTRICT. BY ADV. MR. BINOY VASUDEVAN MR. R.MANIKANTAN RESPONDENTS: --------------- 1. THE PALAKKAD DISTRICT CO-OPERATIVE BANK, REPRESENTED BY ITS AUTHORISED OFFICER, P.B.NO.21, HEAD POST OFFICE ROAD, SULTHANPET, PALAKKAD-678 001. 2. SANOOJ, S/O.A.K.NOORMUHAMMED, LAMIYA MANZIL, BANK ROAD, ALATHUR. 3. ANOOJ, S/O.A.K.NOORMUHAMMED, LAMIYA MANZIL, BANK ROAD, ALATHUR. 4. VINOOJ, S/O.A.K.NOORMUHAMMED, LAMIYA MANZIL, BANK ROAD, ALATHUR. 5. LAMIYA, D/O.A.K.NOORMUHAMMED, LAMIYA MANZIL, BANK ROAD, ALATHUR. 6. RAMLA, W/O.LATE A.K.NOORMUHAMMED, ARAKKAPARAMB, ATTIRIPARA, ANGAPARAMBA P.O., PERINTHALMANNA. R1 BY ADV. MR. M.P.ASHOK KUMAR R4 & 6 MR. JOHN JOSEPH(ROY) MR. LAWRENCE D'CUNHA THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 06/07/2010, ALONG WITH WPC NO. 7609 OF 2010 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.R. RAMACHANDRA MENON J. ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ W.P. (C) Nos. 35847 of 2009 & 7609 of 2010 ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ Dated, this the 6th day of July, 2010 JUDGMENT The basic issue involved in both these cases is rather interconnected closely. The property which is stated as belonging to the petitioners in the former case; which was originally belonging to the borrower, from whom the petitioners derived their title; is sought to be proceeded against at the instance of the respondent Bank, for realization of the amount stated as due under a loan availed by the deceased borrower. 2. The sequence of events is as follows: The late Noor Muhammed (from whom the concerned properties/shop rooms in the shopping complex were purchased by the petitioner in W.P (C) 35847 of 2009) had availed a loan of Rs. 7.5 lakhs from the respondent Bank, creating security interest over two items of the properties; the first one to an extent of 7.5 cents of land with a residential building situated thereon owned by the borrower and the other one, of an extent of 7 cents of land with shopping complex constructed thereon, which was also owned by the borrower. The case of the petitioners in the former Writ Petition is that, they had purchased shop rooms from the late Noor Muhammed, on the strength of the relevant documents, including encumbrance-free certificates showing that the said shop rooms were W.P. (C) Nos. 35847 of 2009 & 7609 of 2010 : 2 : not the subject matter of any charge, by paying valid sale consideration and were enjoying the possession, ownership and title with respect to the shop rooms ever since then. While so, Ext.P8 notice was issued by the respondent Bank, referring to the proceedings under Section 13 (4) of the SARFAESI Act against the properties and shop rooms and on coming across such notification, the petitioners rushed to the Bank, stating that, they have been virtually cheated by the conveyor of the title, who had availed a loan from Bank and the properties were sold to the petitioners without clearing the subsisting liability to the Bank. In the said circumstances, the petitioners, with intent to save their property, requested the Bank either to proceed against residential building and appertenent land, which was owned by the principal borrower or to permit the petitioners to have the liability satisfied, by extending the benefit of 'OTS'. According the petitioners, the Bank was not amenable to have either of the above two courses, which made the petitioners to approach this Court by filing the Writ Petition, wherein all the legal heirs of the deceased Noor Muhammed including the widow have been impleaded as the respondents 2 to 6. 3. During the pendency of the above proceedings before this Court, at the instance of the parties concerned, the matter was tried to be settled, by way of mediation, which however did not turn to be W.P. (C) Nos. 35847 of 2009 & 7609 of 2010 : 3 : fruitful. In the said circumstance, the Bank proceeded with the steps for realization of the due amount, by causing the residential building and land owned by the deceased borrower to be sold in public auction and the same was scheduled on 10.3.2010 4. The learned counsel for the petitioner in the former Writ Petition submits that, the 6th respondent in the said Writ Petition, who is the widow of the deceased borrower Noor Muhammed, whose address has been given in Perinthalmanna and on whom the service of notice was effected by sending special messenger of this Court in the address at Perinthalmanna, chose to approach this Court by filing W.P. (C) 7609 of 2010, giving the address at Alathur, where the residential building of the deceased borrower was situated, on the eve of the sale scheduled on 10.3.2010, raising many a ground. After hearing the petitioner therein, as per the interim order dated 9.3.2010, the conformation of sale if any, was stayed for a period of two weeks, which was subsequently extended by two months on 29.3.2010 and not thereafter. In the said Writ Petition, eventhough reference is made to W.P.(C) 35847 of 2010, the petitioners in the said case have not been impleaded in the party array. In the meanwhile, the sale took place, pursuant to which the successful bidder also sought to get impleaded himself in the party array by filing I. A No. 4625 of 2010 in W.P. (C) W.P. (C) Nos. 35847 of 2009 & 7609 of 2010 : 4 : 7609 of 2010. Counter affidavit has been filed by the second and third respondents, explaining the facts and circumstances and also producing copies of the relevant documents in support of their case. 5. Going by the prayers in the former Writ Petition, the first one is to direct the Bank to proceed against the residential house of the creditor, before proceeding against the shopping complex and the second prayer is that the benefit of 'OTS' might be ordered to be given.. 6. The learned standing counsel appearing for the Bank submits that, the relief prayed for in the said Writ Petition stands substantially granted. The Bank has proceeded against the residential property of the principal borrower, as prayed fore by the petitioner. It is accordingly that the property has been sold, procuring a total sale price of Rs.35,00,500/- and that the entire due amount under the loan transaction stands cleared, as the outstanding arrears was only Rs. 35 lakhs. 7. In the above circumstances, no further orders are necessary in the said Writ Petition (W.P. (C) 35847 of 2009) and the same is closed. 8. With regard to the relief sought for in W.P.(C) 7609 of 2010, the learned counsel for the petitioner submits that, the steps taken by the Bank to sell the property/residential building is not in conformity with the statuary requirement. The sale stated as conducted on 10.3.2010 W.P. (C) Nos. 35847 of 2009 & 7609 of 2010 : 5 : is not in order. It is also stated that petitioners are having the right to construct 3rd and 4th floor of the shopping complex by virtue of the settled rights and liberties. This is a matter, which is to be agitated elsewhere. With regard to the other aspects, in respect of the sale of the properties, the fact remains that the shopping complex has not been subjected to sale and the respondent Bank proceeded only against the residential property and recorded satisfaction of the loan amount. As such, the petitioner is still at liberty to enforce the right and liberties if any, in respect of the shopping complex by pursuing such exercise before the appropriate Forum. No opinion is expressed with regard to the alleged rights and interests of the petitioner over the shopping complex or as to the correctness of the steps taken by Bank in causing the residential property to be sold, as observed hereinbefore. The sale has already been effected on 10.3.2010 and the petitioner in I.A 4625/2010 is stated as the successful bidder. If the petitioner is aggrieved of the sale in any manner, she is at liberty to challenge the same by resorting to the remedy available under the Statute by approaching the DRT, if so advised, As such, no interference is made. The Writ Petition is dismissed accordingly. P. R. RAMACHANDRA MENON, JUDGE kmd