IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN THURSDAY, THE 29TH OCTOBER 2009 / 7TH KARTHIKA 1931 WP(C).No. 29904 of 2009(G) ----------------------------------- PETITIONER(S): --------------------- XAVIER SEBASTIN, VALLAVANKOTTU RAMAPURAM BAZAR.P.O., REP. BY HIS POWER OF ATTONEY HOLDER SEBASTIAN, S/O. THOMAS VALLAVANKOTTY HOUSE RAMAPURAM. BY ADV. SRI.ROY CHACKO SRI.K.C.VINCENT RESPONDENT(S): ---------------------- 1. THE SALE OFFICER, KIZHUTHADIYOOR SERVICE CO-OP. BNK LTD. NO.1995, MAIN ROAD, PALA. 2. THE KIZHUTHADIYOOR SERVICE CO-OP BANK LTD.NO.1995, REPRESENTED BY ITS SECRETARY MAIN ROAD, PALA. 3. M.K.SANTHI, W/O. SASI, R.V.BHAVAN RAMAPURAM BAZAR.P.O., RAMAPURAM. 4. R.VELAYUDHAN, R.V.BHAVAN, RAMAPURAM BAZAR.P.O. RAMAPURAM. 5. JOHNYKUTTY AGUSTINE, OODUPUZHA HOUSE RAMAPURAM BAZAR.P.O., RAMAPURAM. ADV. SRI.P.C.HARIDAS FOR R2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 29/10/2009, ALONG WITH WPC NO. 38056 OF 2008 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: S. SIRI JAGAN, J ----------------------------------- W.P.(C).NO.29904 OF 2009 -------------------------------------- Dated this the 29th day of October, 2009. J U D G M E N T The petitioner is the purchaser of certain properties which have been mortgaged by the 3rd respondent to the 2nd respondent as security for loan amounts taken by respondents 3 to 5. Petitioner challenges proceedings initiated by the 2nd respondent, for sale of the property so purchased by the petitioner, for recovery of the loan amounts due from respondents 3 to 5. According to the petitioner, other properties mortgaged by the third respondents for the same loan is till available for proceeding against, which would be more than sufficient to covered the loan amounts due. Petitioner therefore, requests that the respondents 1 and 2 be directed to proceed first against the other properties mortgaged by the third respondent, before proceeding against the property purchased by the petitioner from the third respondent. 2. Although notice had been served by special messenger on respondents 3 to 5, there is no appearance for them. Counsel for the second respondent opposes the prayers of the petitioner. According to W.P.(C).NO.29904 OF 2009 2 him since the entire properties are mortgaged to the Bank it is for the bank to decide as to which property should be proceeded against first. 3. After considering the rival contentions, I am of the opinion that the second respondent would not in any way be prejudiced if the respondents 1 and 2 are directed to first proceed against the other properties of the 3rd respondent before proceeding against the property now purchased by the purchaser from the third respondent. If the amounts realised by sale of that property is not sufficient to cover the balance amounts due under the loan, the respondents 1 and 2 can certainly proceed against the property now in the hands of the petitioner. Accordingly this writ petition is disposed of with a direction to the respondents 1 and 2 to first proceed against the other properties mortgaged by the third respondent. Only if the amounts so realised are not sufficient to satisfy the debt, the property purchased by the petitioner from the third respondent shall be proceeded against. The writ petition is disposed of accordingly. S. SIRI JAGAN, JUDGE. pm W.P.(C).NO.29904 OF 2009 3