IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR THURSDAY, THE 20TH AUGUST 2009 / 29TH SRAVANA 1931 OP.No. 32733 of 2002(V) ----------------------- PETITIONER(S): --------------- VIJAYA BANK,A BODY CORPORATE DULY CONST- TUTED UNDER THE BANKING COMPANIES ACQUISITION & TRANSFER OF UNDERTAG ACT,1980 HAVING THEIR H.O. AT TRINITY CIRCLE MG.ROAD,BANGALORE&BRANCHES AMONG OTHER PLACES AT BROADWAY,EKM.REP.IN THEPROSEEDINGS BY THE MANAGER, VIJAYA BANK, BROADWAY BRANCH, EKM. BY ADV. SRI.R.S.KALKURA RESPONDENT(S): --------------- 1. STATEOF KERALA, REPRESENTED BY CHIEF SECRETARY, GOVT.OF KERALA, SECRETARIAT,TRIVANDRUM. 2. THE SPECIAL DY.TAHASILDAR, HOSDURG. 3. KERALA STATE CIVIL SUPPLIES CORPORATION LTD., REPRESENTED BY ITS MANAGING DIRECTOR, P.B.NO.2030, MAVELI BHAVAN, MAVELI ROAD, GANDHI NAGAR, KOCHI. 4. B.FATHIMMA, W/O. LATE MOHAMMED KUNHI, REHMATH MANZIL, MANGATT HOUSE, P.O.BARE VIA.UDUMA, KASARGODE. 5. M.M.AISHYA, W/O. PUNNIRIKATHU ABDUL REHMAN, MANGATTU HOUSE, POSTE BARE, VIA UDUMA, KASARGODE DISTRICT. 6. NAFEESA, W/O. ABDULLA KUNHI, CHATHANSHAL HOUSE, THEKKUL P.O., KASARGODE DISTRICT. 7. ABDUL REHMAN, S/O. MOHAMMED KUNHI, MANGATTU HOUSE, POSTE BARE, VIZ.UDUMA, KASARGODE DISTRICT. 8. M.ABDUL SAMEED, MANGATTU HOUSE, POSTE BARE, VIA. UDUMA, KASARGODE DISTRICT. 9. KADIJA W/O. MUNIR, D.P.BOUSE, KALLAMNADI, KASARGODE DISTRICT. 2 10. SMT.UMMUKULSU, W/O. SHERIFF, MELEPARAMBU, KARANADU P.O., KASARGODE DISTRICT. ADV. SRI.GEORGE POONTHOTTAM,SC, KSCSC FOR R3 R1 AND R2 BY GOVERNMENT PLEADER SRI. MATHEW VADAKKEL SRI.JOY GEORGE, SC, SUPPLYCO FOR R3 SMT.MOLLY JACOB,SC,SUPPLYCO FOR R3 THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 20/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: 3 ORDER ON CMP 55283 OF 2002 IN OP 32733 OF 2002 DISMISSED 20.8.2009 SD/-C.N.RAMACHANDRAN NAIR, JUDGE. APPENDIX PETITIONER'S EXHIBITS: EXT.P1 TRUE COPY OF THE MEMORANDUM OF DEPOSIT OF TITLE DEED EXT.P2 TRUE COPY OF THE ATTACHMENT NOTICE DATED 13.9.2002 EXT.P3 TRUE COPY OF THE CLAIM PETITION DATED 27.9.2002 EXT.P4 TRUE COPY OF THE POSTAL ACKNOWLEDGEMENT. EXT.P5 TRUE COPY OF THE NOTICE ISSUED BY THE 3RD RESPONDENT. EXT.P6 TRUE COPY OF THE LETTER DATED 5.10.2002 RESPONDENTS' EXHIBITS: NIL. TRUE COPY P.S. TO JUDGE. C.N. RAMACHANDRAN NAIR, J. -------------------------------------------- O.P. NO. 32733 OF 2002 -------------------------------------------- Dated this the 20th day of August, 2009 JUDGMENT Petitioner-Bank advanced loan to the husband of the fourth respondent against mortgage of 55 cents of his property by deposit of title deeds. Petitioner's case is that Bank filed O.A. against the borrower, who later died and legal heirs, namely respondents 4 to 10 are respondents in the said case. Pending Bank's application for recovery of arrears by attachment and sale of mortgaged property, the third respondent has proceeded against borrower's property for recovery of damages due to them on account of loss caused in the licence transactions between the deceased and the Civil Supplies Corporation. The specific case of the petitioner is that Corporation will not get priority charge over the Bank and the Bank has first charge by virtue of equitable mortgage created in it's favour. When the O.P. was taken up this Court passed an order on 11.11.2002 directing the second respondent to retain recovered sale proceeds pending further orders in the O.P. Government Pleader has stated that sale of the property is 2 over and the sale stands confirmed. In the circumstances, it is for the second respondent to consider Bank's claim for priority in payment based on the mortgage executed in it's favour. Government Pleader submitted that the attachment was under RR Act and therefore Corporation has priority in recovery. It is therefore a matter to be seen whether the mortgage by deposit of title deeds is prior to the attachment for the Corporation and if so to release payment to the Bank in view of it's priority. O.P. is therefore disposed of directing the second respondent to entertain a claim petition and after verifying the records, and after verifying the claims of third respondent, if the Bank is found to have priority payment should be made without any delay. The second respondent is directed to pass orders after hearing the parties within a period of three months from the date of production of a copy of this judgment. (C.N. RAMACHANDRAN NAIR) Judge kk 3