IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM FRIDAY, THE 4TH DECEMBER 2009 / 13TH AGRAHAYANA 1931 WP(C).No. 32372 of 2009(N) -------------------------- PETITIONER(S): --------------- JOSE CHERIYAN, AGED 58 YEARS KOODALLIL HOUSE, PEACE LANE KURISUMOOD.P.O., CHANGANASSERY, KOTTAYAM DISTRICT. REP. BY HIS ATTORNEY HOLDER M.D.SADASIVAN, AGED 62 YEARS S/O. DAMODHARAN, RESIDING AT MUTTITHARA HOUSE THRICKODITHANAM.P.O. CHANGANASSERY, KOTTAYAM DIST. BY ADV. SRI.C.S.MANU SRI.S.K.PREMRAJ SRI.K.N.RAVEENDRAN SRI.P.CHANDRASEKHARAN PILLAI (VENNELA) SRI.ABHILASH AKBAR SRI.T.B.SIVAPRASAD SRI.V.S.PREJITH RESPONDENT(S): --------------- 1. STATE OF KERALA, REP. BY TH CHIEF SECRETARY TO GOVERNMENT OF KERALA, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. DEPUTY TAHSILDAR (RR) KERALA FINANCIAL CORPORATION, KOTTAYAM. 3. KERALA FINANCIAL CORPORATION, BRANCH OFFICE, GEETHA TRADE CENTRE M.C.ROAD, KOTTAYAM REPRESENTED BY ITS MANAGER. 4. SMT. SHEEBA JOSSY W/O. JOSSY VARGHESE, M/S. DOMINIC GOLD WORKS THOPPIL HOUSE, KURISUMMOODE.P.O. VAZHAPPALLY EAST CHANGANASSERY, KOTTAYAM DIST. 5. STATE BANK OF TRAVANCORE, KOTTAYAM. 6. DEBT RECOVERY TRIBUNAL (KERALA &LAKSHADWEEP) ERNAKULAM. WP(C).No. 32372 of 2009 ADV. SRI.A.A.ABUL HASSAN, SC, KFC FOR R3 SRI. BIJOJ CHANDRAN, GOVERNMENT PLEADER SRI. R.S. KALKURA, STANDING COUNSEL THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 04/12/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: C.K. ABDUL REHIM, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - - W.P. (C) No. 32372 OF 2009 - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 4th day of December, 2009 J U D G M E N T Petitioner is an auction bidder, participated in an auction conducted by the second respondent on 15.10.2009, with respect to the sale of an immovable property having an extent of 9.9 ares, which was conducted as per Ext.P1 notice. Since the petitioner was the highest bidder, his offer was accepted. Apart from payment of EMD, the petitioner had deposited 15% of the bid amount on the date of auction itself. Time for balance payment was fixed within one month thereafter. But in the meanwhile, it is learned that, the Debt Recovery Tribunal, Ernakulam, had issued an order of attachment with respect to the same property, at the insistence of the 5th respondent Bank, in an O.A filed against the 4th respondent. In view of the order of attachment which came to the notice of the petitioner, the petitioner apprehends that inspite of paying the entire amount, he will not get the property unencumbered. Meanwhile Ext.P4 notice was issued by the second respondent directing payment of balance WPC.32372 of 2009 : 2 : amount within thirty days, otherwise threatening with forfeiture of the amount already remitted. 2. It is reported that during pendency of this writ petition, the petitioner had remitted the balance amount, on 12.11.2009. It is also reported that the sale has already been confirmed in favour of the petitioner. What remains is issuance of sale certificate and delivery of possession. 3. The Standing Counsel appearing for 5th respondent Bank, on the basis of the instructions submitted that, the property in question was not mortgaged with respect to the loan transaction. But the attachment is sought for only because the property belongs to the defaulter in the loan transaction. Learned Standing Counsel appearing for the third respondent on the other hand contended that the property in question was mortgaged to the third respondent much prior to the loan transaction and that the third respondent is holding absolute charge with respect to the property in view of the mortgage. 4. From the circumstances as stated above, it seemsthat interim order of the attachment now issued by the DRT may WPC.32372 of 2009 : 3 : not be sustainable in view of the prior mortgage created in favour of third respondent. However, it is for the parties concerned to approach the Tribunal and apprise all these matters for its consideration, while seeking release of attachment. In the above circumstances, the writ petition is disposed of preserving liberty of the petitioner as well as the third respondent to approach the Debt Recovery Tribunal seeking release of the attachment. Needless to say that if any such application is made before the Debt Recovery Tribunal, the same shall be considered and appropriate orders shall be issued at the earliest, taking into consideration of the factual situations prevailing. ( C.K. ABDUL REHIM, JUDGE) jma