IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM TUESDAY, THE 5TH OCTOBER 2010 / 13TH ASWINA 1932 WP(C).No. 22577 of 2010(V) --------------------------------------- PETITIONER(S): ----------------------- ANIL KUMAR, S/O.GOPI, AGED 46 YEARS, GOPIKRISHNA, T.C.22/345, ATTUKAL, MANAKKAD P.O., THIRUVANANTHAPURAM-695 009. BY ADV. SRI.S.MOHAMMED AL RAFI RESPONDENT(S): ------------------------- 1. PNB HOUSING FINANCE LIMITED, REP.BY AUTHORISED OFFICER, CAPITAL TOWERS, STATUE, TRIVANDRUM-695 001. 2. BRANCH MANAGER, PNB HOUSING FINANCE LTD, CAPITAL TOWERS, STATUE, TRIVANDRUM-695 001 3. SWAPNA MOHAN, W/O.MURALEEKRISHNAN, SREE VILASOM (NANDANAM) KONOTHUKIZHAKKUM KARA PUTHEN VEEDU, NEAR MULLASSERY H.S., LAKSHAM VEEDU LANE, KARAKULAM P.O., TRIVANDRUM-695 564. 4. LATHA MOHAN, W/O.MOHANAN NAIR, SREE VILASAOM (NANDANAM) KONOTHUKIZHAKKUM KARA PUTHEN VEEDU, NEAR MULLASSERY H.S., LAKSHAM VEEDU LANE, KARAKULAM P.O.,TRIVANDRUM-695 564. 5. MOHANAN NAIR, S/O.SUKUMARAN NAIR, SREE VILASOM (NANDANAM) KONOTHUKIZHAKKUM KARA PUTHEN VEEDU, NEAR MULLASSERY H.S., LAKSHAM VEEDU LANE, KARAKULAM P.O.,TRIVANDRUM-695 564. WP(C).No. 22577 of 2010(V) 6. MANOJ, S/O.MOHANAN NAIR, THIRUVATHIRA, T.C.43/551(3) MANACAUD P.O., TR4IVANDRUM-695 009 7. COMMISSIONER OF POLICE, TRIVANDRUM CITY, PIN-695 001. 8. SUB INSEPECTOR OF POLICE, KARAMANA,TRIVANDRUM, PIN-695 005. R7 & R8 BY GOVT. PLEADER MR.BIJOY CHANDRAN. R1 & R2 BY ADV. SRI.P.BALAKRISHNAN, SRI.N.SASI. R3 BY ADV. SRI.P.V.ANIL. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 05/10/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs. C.K.ABDUL REHIM, J. ------------------------------------------- W.P.(C).No.22577 of 2010 ------------------------------------------- Dated this the 5th day of October, 2010 J U D G M E N T ---------------------- Petitioner claims to be a bona fide purchaser of 3.5 cents of property comprised in Re-Sy.No:193/21 of Nemam Village. The purchase was made from respondents 3 to 5. According to the petitioner, the fact that the property was under mortgage to respondents 1 and 2, was suppressed from the petitioner at the time of purchase. Only when the respondents initiated recovery proceedings, consequent to default committed in repayment of the loan, the petitioner came to know about the mortgage. It is submitted that a criminal complaint has already been filed against respondents 3 to 6 in this regard, and it is now pending disposal before the Judicial First Class Magistrate Court-II, Thiruvananthapuram. 2. Pursuant to proceedings initiated under the W.P.(C).22577/10-V -2- SARFAESI Act notice contemplating action under Section 13(4) was issued, and the property in question was taken over possession, symbolically. According to the petitioner, eventhough various contentions are raised against the proceedings, he is ready and willing to pay off the entire liability due to the respondents 1 and 2 in order to save the property from being sold, without prejudice to his rights to proceed against respondents 3 to 6 with appropriate legal actions. But it is complained that, inspite of such an offer made by the petitioner, respondents 1 and 2 are not permitting him to wipe off the liability, and that they are not prepared to release the title deed to the petitioner. 3. In a counter affidavit filed by the 2nd respondent it is stated that an amount of Rs.9 lakhs was availed by respondents 4 to 6, as early as in the year 2003, by mortgaging the property. It is stated that the balance outstanding as on 31.10.2009 is Rs.9,05,386/-. It is specifically contended that since the mortgage had came into existence as early as on 6.3.2003, the sale in favour of W.P.(C).22577/10-V -3- the petitioner, which took place subsequently in the year 2008, will not in any way affect the rights of respondents 1 and 2. 4. Having confronted with the above situation learned counsel appearing for the petitioner appealed to this court for permitting payment of the entire balance within a period of one month and for direction to respondents 1 and 2 to release the title deed to the petitioner, on clearing payment of the entire arrears. 5. Counsel appearing for respondents 3 to 6 conceded that the property in question was actually sold to the petitioner for valuable consideration and title of the property now stands in the name of the petitioner. Respondents 3 to 6 have no objection in releasing the title deed pledged with the respondent Bank, to the petitioner. 6. Under the above circumstances the writ petition is disposed of directing respondents 1 and 2 not to proceed with any further coercive steps of recovery, provided the petitioner remits the entire balance outstanding on or W.P.(C).22577/10-V -4- before 30.10.2010. On settlement of payment as directed above, respondents 1 and 2 are directed to release the title deeds of the property in question pledged with the Bank, to the petitioner. It is made clear that the petitioner will be at liberty to proceed against respondents 3 to 6 under appropriate legal steps as permissible under law, for realizing the loss if any sustained due to payment of the loan amount. C.K.ABDUL REHIM, JUDGE. okb