IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR FRIDAY, THE 29TH JANUARY 2010 / 9TH MAGHA 1931 WP(C).No. 33004 of 2009(U) -------------------------- PETITIONERS: --------------- ANTU, S/O. POULOSE, KAITHARATHU MANAPPURAM, CHALAKKUDI DESOM VILLAGE, MUKUNDAPURAM TALUK. BY ADV. SRI.K.RAVEENDRAN SRI.C.CHANDRASEKHARAN SRI.P.VISWANATHA MENON RESPONDENTS: --------------- 1. THE SECRETARY, THE KUNNUKARA SERVICE CO-OPERATIVE BANK LTD.NO.827, ERNAKULAM DISTRICT. 2. THE SUB REGISTRAR, CHENGAMANAD SUB REGISTRY, P.O.ALUVA, ALUVA DESOM. ADV. SRI.V.PHILIP MATHEW FOR R1 GOVERNMENT PLEADER FOR R2 SHRI.K.RAMESH THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 29/01/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 33004 of 2009(U) APPENDIX PETITIONER'S EXHIBITS:- EXHIBIT P1 : Sale deed executed in favour of the petitioner by the Principal Sub Judge, N.Parur dated 22/2/2006. EXHIBIT P2 : Application dtd.10/1/2004 submitted by K.R.Aravindakshan before the 1st respondent. EXHIBIT P3 : Receipt dtd.28/11/2007 issued by the 1st respondent. EXHIBIT P4 : Lawyer notice dtd.6/10/2009 sent by Advocate P.Viswanatha Menon to the 1st respondent. EXHIBIT P5 : Reply dtd.13/10/2009 issued by 1st respondent through Advocate S.Unnikrishnan, Aluva. EXHIBIT P6 : Letter dtd.10/9/2009 issued by 2nd respondent to the petitioner. RESPONDENT'S EXHIBIT:- EXHIBIT R1(a): Representation to the first respondent. True copy P.A. to Judge T.R.RAMACHANDRAN NAIR, J. ------------------------------------------------ W.P.(C)No.33004 of 2009 ------------------------------------------------ Dated this the 29th day of January, 2010 JUDGMENT The petitioner is the decree holder in O.S.No.123/2003 before the Sub Court, North Parur, a suit for specific performance of an agreement with one Smt.Sumathi Amma. On depositing balance sale consideration in the Court, the Court executed a sale deed in favour of the petitioner which is produced as Ext.P1. It appears that the judgment debtor's son Shri.K.R.Aravindakshan had taken a loan for Rupees one lakh from the first respondent by mortgaging the property and the entire loan amount was remitted by the said Shri.Aravindakshan on 2/1/2004. The said Shri.K.RAravindakshan by application Exhibit P2 requested the first respondent to execute a release deed. Exhibit P3 is the copy of the receipt issued by the bank showing that there is no liability in respect of the property in favour of the bank. Both Smt.Sumathi Amma and her son are no more. 2. For issuing a non-encumbrance certificate the petitioner approached the first respondent. As the same was W.P.(C)No.33004 of 2009 2 refused the petitioner was forced to issue a legal notice to the 1st respondent. The said legal notice is produced as Ext.P4. In the reply sent by the first respondent Exhibit P5, it is pointed out that a release deed can be issued only to Aravindakshan not to a third person like the petitioner. The petitioner has approached this Court in the light of the above circumstances. 3. The second respondent has filed a counter affidavit in the matter. It is pointed out that the Mortgagee Bank has not executed a release deed in favour of the said mortgagors to evidence the relinquishment of its rights over the mortgaged property, so far. In the counter affidavit the first respondent has taken the stand that the petitioner is a stranger as far as the bank is concerned. The legal heirs of the Sumathi Amma have submitted a representation to the first respondent requesting not to issue release deed to any one. The copy of the same is produced as Ext.R1(a). 4. The learned counsel for the petitioner submitted that the petitioner will be satisfied if the bank send appropriate communication to the second respondent stating that there is no liability as regards the property. The learned counsel for the W.P.(C)No.33004 of 2009 3 first respondent submitted that in the light of the objection by the legal heirs there will be difficulty for bank in executing a release deed as demanded by the petitioner. 5. There will be a direction to the first respondent to communicate the fact that there is no liability as far as the property is concerned along with a copy of the objection submitted by the legal heirs of Shri.Aravindakshan to the second respondent within three weeks from the date of receipt of a copy of this judgment. It is open to the second respondent to take appropriate action on receipt of such communication from the bank as enjoyed by law. The writ petition is disposed of as above. T.R.RAMACHANDRAN NAIR, JUDGE skj