IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC FRIDAY, THE 4TH APRIL 2008 / 15TH CHAITHRA 1930 WP(C).No. 10836 of 2008(M) -------------------------- PETITIONER: --------------- M/S.OIKOCREDIT ECUMENICAL DEVELOPMENT CO-OPER: SOCIETY UA,AMERSFOORT,NETHERLANDS REP, BY MR.LAM BERTUS CALIS, AGE 57 YEARS, S/O MR.LAM BERTUS GIJISBERTUS CALIS, RAKOCZI UT 30 1072 BUDAP EST, HUNGARY. BY ADV. DR.GEORGE ABRAHAM RESPONDENTS: ----------------- 1. BANK OF BARODA, REPRESENTED BY ITS ASSISTANT GENERAL MANAGER, REGIONAL OFFICE, VASUDEVA BUILDING, T.D.ROAD, ERNAKULAM. 2. S.V.RAMABHADRAN, AUTHORISED OFFICER, BANK OF BARODA, VASUDEVA BUILDING, T.D.ROAD, ERNAKULAM. 3. BRANCH MANAGER, BANK OF BARODA, KOTHAMANGALAM BRANCH, HIGH RANGE SECTION , KOTHAMANGALAM. 4. NIRMALGRAM VANITHA DIARY CENTRAL SOCIETY REPRESENTED BY ITS EXECUTIVE DIECTOR FR.JOY ARAMBANKUDY NIRMALGRAM VANITHA DIARY CENTRAL SOCIETY KEERAMPARA.P.O.,KOTHAMANGALAM 686691, KERALA. BY SRI.DEVAN RAMACHANDRAN, SC FOR BANK SRI.JULIAN XAVIER THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 04/04/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ANTONY DOMINIC, J. =============== W.P.(C) NO. 10836 OF 2008 M ==================== Dated this the 4th day of April, 2008 J U D G M E N T Petitioner claims to have extended financial assistance to the 4th respondent. It is stated that utilising the funds advanced by them, the 4th respondent had acquired movable properties. Petitioner also is referring to Ext.P2 loan agreement and Ext.P3 agreement pledging the movable properties. It is now contended before me that respondents 1 to 3, to whom also the 4th respondent owes substantial amounts have initiated proceedings under Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 and the Bank has already taken possession of the factory and other mortgaged properties. Petitioner submits that in the process, the Bank is attempting to sell movable items that are mortgaged to them. It is on that premise, the writ petition has been filed in which in essence what the petitioner submits is that the properties mortgaged by them should be excluded from further action that the Bank proposes to do. 2. On behalf of respondents 1 to 3, it is submitted that the entire movable and immovable properties of the 4th respondent are under WPC 10836/08 :2 : mortgage to respondents 1 to 3. According to them, it is on the strength of the mortgage so executed, they have taken action resulting in the possession itself being taken over. Counsel for the petitioner submits that all that is sought to be excluded from the sale to be conducted by respondents 1 to 3 is those movable items which are mortgaged to them. 3. While on the one hand the Bank is asserting its rights over the entire property and is also contending that the 4th respondent could not have mortgaged any of the items without their consent, the petitioner is asserting claim over certain parts of the movable properties. 4. Prima facie, a reading of Exts. P2 and P3 also gives the impression that what has been mortgaged was the existing movable items. Therefore, in order to accept the case of the petitioner it requires to be established by them that there are certain items of movable properties which were acquired by utilising their funds and those items of movable properties are covered by the mortgage that the 4th respondent has executed in favour of respondents 1 to 3. These are question of fact which are to be disputed before civil court. In this writ petition, this court will not be in a position to adjudicate all these issues. Therefore, I do not think the writ petition is the remedy that is available to the petitioner. Writ WPC 10836/08 :3 : petition is dismissed. Counsel for the petitioner submits that it may not be necessary for the Bank to dispose of the entire assets to realise their liabilities. This certainly is a matter for the Bank to consider and the petitioner has already moved the Bank and the Bank shall consider this aspect and take a decision thereof. ANTONY DOMINIC,JUDGE. Rp