IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.M.JAMES TUESDAY, THE 28TH NOVEMBER 2006 / 7TH AGRAHAYANA 1928 WP(C).No. 14388 of 2006(K) -------------------------- PETITIONER: ------------ 1. P.M.ABUBAKER, AGED 52 YEARS, S/O. MAITHEEN, PARAKKAKUDI HOUSE, THRIKKALATHUR P.O., VIA MUVATTUPUZHA. 2. MRS. ZUHRA ABUBAKER, W/O. P.M.ABUBAKER, PARAKKAKUDI HOUSE, THRIKKALATHUR P.O., VIA MUVATTUPUZHA. BY ADV. SRI.GEORGE ABRAHAM SRI.SELVIN ABRAHAM RESPONDENTS: ------------- 1. THE ERNAKULAM DISTRICT CO-OPERATIVE BANK LIMITED, REPRESENTED BY ITS GENERAL MANAGER, P.B.NO.4, KAKKANAD P.O., KOCHI-30. 2. BRANCH MANAGER, THE ERNAKULAM DISTRICT CO-OPERATIVE BANK LTD., MUVATTUPUZHA BRANCH, KACHERITHAZHAM, MUVATTUPUZHA P.O. 3. SPECIAL SALES OFFICER, THE ERNAKULAM DISTRICT CO-OPERATIVE BANK LTD., KAKKANAD P.O., KOCHI-30. 4. ZAINABA SULEIMAN, W/O. K.M.SULEIMAN, KALLUVETTIKUZHI HOUSE, THRIKKALATHUR P.O., VIA MUVATTUPUZHA. ADDL.5. SRI.K.M.SULAIMAN, C/O.ZAINABA SULAIMAN, KALLUVETTIKUZHI HOUSE, THRIKKALATHUR P.O. VIA MUVATTUPUZHA. (ADDL. R5 IMPLEADED AS PER ORDER DATED 2.6.2002 IN W.P.(C) 14388/2006) BY ADV. SRI.P.V.SURENDRANATH SRI.BIJU ABRAHAM THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 28/11/2006, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) 14388/2006 APPENDIX Ext.P1 TRUE COPY OF RATION CARD SHOWING THE NAMES OF THE PETITIONERS. EXT.P2 TRUE COPY OF REGISTERED DEED DATED 7.8.1999 EXECUTED BY THE FIRST PETITIONER IN FAVOUR OF RESPONDENTS. EXT.P3 TRUE COPY OF AGREEMENT DATED 17.8.1999 EXECUTED BY 4TH RESPONDENT IN FAVOUR OF THE 1ST PETITIONER. EXT.P4 TRUE COPY OF PETITION DATED 28.2.2003 FILED BY THE FIRST RESPONDENT BEFORE THE JOINT REGISTRAR/ARBITRATOR. EXT.P5 TRUE COPY OF SUMMONS DATED 15.6.2004 ISSUED BY THE JOINT REGISTRAR IN A.R.C. No.148/03 TO THE FIRST PETITIONER. EXT.P6 TRUE COPY OF DEMAND NOTICE DATED 9.5.2006 ISSUED BY THE SPECIAL SALE OFFICER TO THE FIRST PETITIONER. EXT.P7 TRUE COPY OF REPRESENTATION DATED 5.5.2006 SUBMITTED BY THE FIRST PETITIONER BEFORE THE FIRST RESPONDENT. //TRUE COPY// P.S. TO JUDGE. J.M. JAMES, J. ------------------------------- W.P.(C) No. 14388 of 2006 ------------------------------- Dated this the 27th November, 2006. J U D G M E N T The writ petitioners pray that respondents 1 and 2 may be directed to realise the loan amount, covered under Ext.P6 demand notice, from 18.5 cents of the property, mortgaged with the first respondent Bank, at the time of the availing of the loan, and also to direct the respondents 1 to 3, not to take any coercive steps against the property of 3 cents owned by the second petitioner, the wife of the first petitioner. 2. The submissions of the learned counsel appearing for the writ petitioners are that the first petitioner had availed a loan from the first respondent, Bank. It was not repaid in full. Therefore, Ext.P6 demand notice for an amount of Rs.2,55,028/= was issued. However, it is now borne out that the property that was mortgaged with the first respondent, Bank, was sold to one Sasi. It was redeemed by the first petitioner, and thereafter, it was mortgaged with the housing society. Under Ext.P3 agreement, the writ petitioners W.P.(C) No.14388/2006 2 claim that they have sold the property to the additional 5th respondent, the husband of the 4th respondent, on the condition that the loans availed by the first writ petitioner shall be cleared by the additional 5th respondent. 3. The Additional 5th respondent, the husband of the 4th respondent was impleaded. As the 4th respondent, wife, is before me, I dispense with the issue of notice to the additional 5th respondent. 4. Because of the issuance of Ext.P6 demand notice, the writ petitioners apprehend that their movable properties may be attached, resorting to Section 76 of the Kerala Co-operative Societies Act, 1969, in short 'the Act', and Rule 75 of the Kerala Co-operative Societies Rules, 1969, in short 'the Rules'. However, the learned counsel for the writ petitioners submit that the immovable property may be directed to be first proceeded with, before proceeding on the movable properties. W.P.(C) No.14388/2006 3 5. The learned counsel appearing for the first respondent, Bank, has brought to the notice of this Court that, as per the procedure, under Rule 75 of the Rules, the movable properties has to be proceeded and further proceedings on the immovable properties can be simultaneous, the discretion being that of the Bank. 6. As discussed above, the materials available clearly show that even when the property of 18.5 cents was mortgaged with the first respondent Bank, it had been transacted with one Sasi, thereafter with the housing society, and later, sold to the Additional 5th respondent. 7. The learned counsel appearing for the first respondent Bank further submit that when there is any change in the proceedings that has been initiated against the writ petitioners, particularly, the first writ petitioner, being a debtor, his only remedy is to raise a dispute or to approach the appropriate forum, challenging Ext.P6 demand notice and no action through Article 226 of the Constitution of India will lie. W.P.(C) No.14388/2006 4 8. When I appreciate the entire materials that are placed before me, I find that if at all there is an agreement, which is valid or binding between the 4th respondent, and the first writ petitioner, in the event of any violation, the aggrieved party has to resort to the legal remedies that may be available to him. He cannot get a direction from this Court against the first respondent, as to how to proceed, for the realisation of the amount due to the bank. The procedure to be adopted in realising the amount also vests with the first respondent, Bank, as per Rule 75 of the Rules and Section 76 of the Act. In such circumstances, this Court cannot pass any order, as prayed for by the writ petitioners. 9. The next prayer, as not to disturb the three cents of the property possessed by the second writ petitioner, is challenged by the first respondent Bank, on the plea that all the movable properties are kept in the house constructed by the first writ petitioner in the three cents of the property. W.P.(C) No.14388/2006 5 10. Counsel appearing for the 4th respondent had submitted that a person who has sufficient ingenuity in deceiving the bank deserves no leniency. Counsel also was very emphatic in submitting that if a protective order, on sympathetic grounds, is passed, it would adversely affect the interest of all others. 11. After considering the materials that are placed before me, I find that no other orders or directions need be issued in this writ petition. It is for the writ petitioners to work out their remedies, including to establish that the movable properties in the house belong to the second writ petitioner. Accordingly, this writ petition is dismissed. J.M. JAMES, JUDGE nj.