IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN THURSDAY, THE 24TH JANUARY 2008 / 4TH MAGHA 1929 WP(C).No. 31933 of 2007(B) -------------------------- PETITIONER: ------------ GIC HOUSING FINANCING LTD. REP. BY ITS BRANCH MANAGER, ERNAKULAM BRANCH, T.D.ROAD, COCHIN. BY ADV. SRI.K.JAJU BABU RESPONDENTS: ------------- 1. STATE OF KERALA REP. BY SECRETARY TO GOVERNMENT, REVENUE DEPARTMENT, GOVT.SECRETARIAT, TRIVANDRUM. 2. THE DISTRICT COLLECTOR, TRIVANDRUM. 3. THE TAHSILDAR (RR), TRIVANDRUM. 4. THE RECOVERY OFFICER, DEBTS RECOVERY TRIBUNAL, 8TH FLOOR, KSHB BUILDING, PANAMPILLY NAGAR, KOCHI.682 036. 5. SMT.JAYASREE NARAYANA PILLAI, S/O.MADHAVAN PILLAI, KRIPA, ADITHYA BUILDING, TC.4/9071, KAWDIAR, TRIVANDRUM. 6. SHRI.R.JAYACHANDRAN, KAVUVILA HOUSE, THOTTAKKAD P.O., KALLAMBALAM, TRIVANDRUM DISTRICT. 7. THE SOUTH INDIAN BANK LTD., REPRESENTED BY THE MANAGER, CHAKKAL BRANCH, TRIVANDRUM. BY ADV. SRI.GEORGE VARGHESE (MANACHIRACKEL) GOVT. PLEADER SRI.P.K.RAVIKRISHNAN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 24/01/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX IN W.P.C.NO.31933 OF 2007 PETITIONER'S EXHIBITS EXT.P1 TRUE COPY OF THE G.O.(MS)NO.268/2002/RD DTD.13-8-02 ISSUED BY THE FIRST RESPONDENT. EXT.P2 TRUE COPY OF THE GENERAL POWER OF ATTORNEY IN FAVOUR OF THE 5TH RESPONDENT ON 15-10-1996 BY SRI.NARAYAN PILLAI EXT.P3 TRUE COPY OF THE LETTER DTD. 18-2-97 BY THE 6TH RESPONDENT ALONG WITH BUILDERS GUARANTEE GIVEN BY RESPONDENTS 5 AND 6 EXT.P4 COPY OF THE NOTICE DTD. 19-3-07 ISSUED BY R3 EXT.P5 COPY OF THE APPLICATION ALONG WITH AFFIDAVIT DTD.5-7-07 FILED BEFORE 4TH RESPONDENT. EXT.P6 COPY OF THE ORDER DTD.18-7-07 OF THE DEBTS RECOVERY TRIBUNAL. EXT.P7 COPY OF THE JUDGMENT DTD.20-1-05IN W.A.NO.1713/04 OF THIS COURT. EXT.P8 COPY OF THE ORDER DTD.21-12-205 IN R.P.NO.347/05 AGAINST THE JUDGMENT IN W.A.NO.1713/04 OF THIS COURT. /True Copy/ PA to Judge. THOTTATHIL.B.RADHAKRISHNAN, J. --------------------------------- W.P(c)No.31933 OF 2007 ------------------------------------ Dated this the 24th day of January, 2008 JUDGMENT Notice to respondent No.5 returned unserved, stating “unclaimed”. I am satisfied that notice has been taken out in his proper address. It is declared that notice to respondent No.5 is duly served. 2. The 5th respondent is the owner of an apartment in a building, of which the 6th respondent is the builder. For the purpose of the construction in question an agreement was executed between the petitioner, GIC Housing Financing Ltd, and respondents 5 and 6. However no charge was created on the property by that exercise. Though a letter of authorisation for equitable mortgage was given with a power of attorney, thereafter a deed was executed in favour of the 5th respondent and she mortgaged that document before the 7th respondent bank and obtained a loan. By deposit of that title deed, interest accrued in favour of the 7th respondent on the land and building in question. WPC.No.31933/07 2 3. Thereafter the petitioner invoked the provisions of the Revenue Recovery Act and attached the property. This was followed by a recovery certificate issued by the Debt Recovery Tribunal in favour of the 7th respondent. 4. On the strength of the attachment under the Review Recovery Act, there is no charge in favour of the petitioner that could be treated as one which would override the rights under the mortgage in favour of the 7th respondent, on the question of priorities. The petitioner cannot have a preference over the 7th respondent, while the 7th respondent may have a preference on the basis of the mortgage. An attachment in the course of revenue recovery proceedings on the strength of the notification applying the Revenue Recovery Act for recovery of dues to the petitioner does not convert that debt to be one that would amount to a prior charge in its favour. There is no such operation of law. 5. I heard learned counsel for the petitioner and the learned counsel for the 7th respondent in relation to the amounts involved. 6. Having regard to the totality of the facts and WPC.No.31933/07 3 circumstances, while repelling the challenge of the petitioner, this writ petition is disposed of issuing the following directions: i) The sale proceedings may continue, however, showing in the sale proclamation, the amounts that is due to the petitioner also by noting such amount, on the basis of the petitioner's affidavit, that would be filed by the petitioner before the recovery officer. ii) The recovery officer would also make a public announcement in the presence of any intending bidder regarding the revenue recovery attachment which the petitioner has over the property and minute such announcement in the proceedings of the recovery officer. iii) Following that, if the amounts generated from sale exceeds the amount that is due to the 7th respondent, such amount will be paid to the petitioner by the recovery officer on the strength of this judgment. iv) Petitioner is left with liberty to invoke all other remedies as may be available in accordance with law, for enforcing the recovery of dues. THOTTATHIL.B.RADHAKRISHNAN JUDGE sv. WPC.No.31933/07 4