IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN FRIDAY, THE 26TH SEPTEMBER 2008 / 4TH ASWINA 1930 WP(C).No. 19519 of 2008(W) ------------------------------------------- PETITIONER: -------------------- M/S.B.C.G.GOLDEN ORCHIDS, 5TH FLOOR, BCG ESTATE, BYE-PASS ROAD, OPPOSITE ERNAKULAM MEDICAL CENTRE, KOCHI 682025, REPRESENTED BY ITS MANAGING PARTNER SMT.REKHA.C.BABU. BY ADV. SRI.S.EASWARAN SRI.SHINU J.PILLAI SRI.P.MURALEEDHARAN (IRIMPANAM) RESPONDENTS: ------------------------- 1. M/S. G I C HOUSING FINANCE LTD. 1ST FLOOR, MANCHU TOWERS, T.D.ROAD, KOCHI 682011. 2. THE AUTHORISED OFFICER, M/S. G I C HOUSING FINANCE LTD. 1ST FLOOR, MANCHU TOWERS, T.D.ROAD, KOCHI 682011. 3. SMT.ROSE KAREENA KURIAKOSE, 'SREELAKSHMI', PALLATH ROAD, NEAR BRIGHT TUTION CENTRE, THAMMANAM, ERNAKULAM, KOCHI-22. ADV. SRI.K.JAJU BABU FOR R1 & 2 SRI.T.R.SADEESAN FOR R1 & 2 SMT.K.A.ANGEL TREENA FOR R3 SMT.ARLISS TRENCY ANTONY FOR R3 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 26/09/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.19519/2008 W APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF PARTNERSHIP DEED DTD. 15TH JUNE, 2005. EXT.P2: COPY OF SALE DEED DTD. 15/10/2003 EXECUTED IN FAVOUR OF SHRI. BABU C.GEORGE. EXT.P3: COPY OF AGREEMENT FOR CONSTRUCTION DETD. 10/10/2006 ENTERED INTO BETWEEN THE PETITIONER AND THE 3RD RESPONDENT. EXT.P4: COPY OF AGREEMENT FOR SALE ENTERED INTO BETWEEN THE PETITIONER AND THE 3RD RESPONDENT. EXT.P5: COPY OF FORMAT OF THE TRIPARTITE AGREEMENT. EXT.P6: COPY OF NOTICE DTD. NIL SENT ON BEHALF OF THE PETITIONER TO THE 3RD RESPONDENT. EXT.P7: COPY OF LETTER DTD. 22/12/2006 ISSUED TO THE PETITIONER BY THE 1ST RESPONDENT. EXT.P8: COPY OF NOTICE DTD. 5/10/2007 ISSUED UNDER SECTION 13(2) OF THE SECURITISATION ACT BY THE 2ND RESPONDENT TO THE 3RD RESPONDENT WITH COPY TO THE PETITIONER. EXT.P9: COPY OF POSSESSION NOTICE DTD. 6/06/2008 ISSUED UNDER SECTION 13(2) OF THE SECURITISATION ACT BY THE 2ND RESPONDENT. RESPONDENT'S EXHIBITS: EXT.R1(A): COPY OF RECEIPT SHOWING THE REMITTANCE OF RS.2,92,935/- BY THE 3RD RESPONDENT TO THE 1ST RESPONDENT ON 10/10/06. EXT.R1(B): COPY OF RECEIPT SHOWING THE REMITTANCE OF RS.92,000/- BY THE 3RD RESPONDENT TO THE 1ST RESPONDENT ON 10/10/06. EXT.R1(C): COPY OF DISBURSEMENT LETTER DTD. 1/11/06 ISSUED BY THE 1ST RESPONDENT TO THE 3RD RESPONDENT. EXT.R1(D): COPY OF LOAN STATUS REPORT FOR THE MONTH ENDING 31/07/08 OF THE 3RD RESPONDENT. EXT.R1(E): COPY OF REPLY GIVEN BY THE PETITIONER GAVE A REPLY ON 4/01/07 TO THE 1ST RESPONDENT. /TRUE COPY/ P.A.TO JUDGE Kss THOTTATHIL B. RADHAKRISHNAN, J. ------------------------------------------------------------------------ W.P.(C) NO.19519 OF 2008 (W) ------------------------------------------------------------------------ Dated this the 26th day of September, 2008 J U D G M E N T The petitioner is a builder. The third respondent wanted to purchase a flat in a project of the petitioner. For that purpose, she availed a loan from the first respondent. Petitioner and respondents 1 and 3 entered into a triparty agreement. Exhibit P5 is the draft. Pursuant to that, the first respondent disbursed Rs.22 lakhs to the petitioner. The third respondent failed to repay the balance sale consideration. Therefore, the second respondent issued Exhibit P8 notice under Section 13(2) of the SARFAESI Act against the property involved in the transaction. 2. Petitioner challenges that proceedings by contending that fractional interest over the land was not transferred to the third respondent and therefore, there is no security property over which any secured interest has accrued in terms of the SARFAESI Act. In the commercial realm, that technical plea would not be W.P.(C) No.19519/2008 - 2 - countenanced by the writ court and therefore, when the matter was considered on 19-8-2008, this Court directed the petitioner to state whether it will pay the amount covered by the triparty agreement. The learned counsel for the petitioner states today, that out of the amount of Rs.22 lakhs, the amount of Rs.21,50,000/- could be paid because on the failure of registration of the booking of the flat, on account of default, the petitioner is entitled to deduct Rs.50,000/- from the credit of the third respondent and that this may be allowed. But the materials disclose that in terms of Exhibit R1(a) and R1(b), amounts of the third respondent are available with the petitioner and that is much above Rs.50,000/-. Therefore, the deduction could be exercised appropriately against such amounts, already in the hands of the petitioner, as disclosed by Exhibits R1(a) and R1(b). Hence, the petitioner could release the entire amount of Rs.22 lakhs to the first respondent, which can receive it, without prejudice to its right to move against third respondent for recovery proceedings, which are not subject matter of this writ petition. W.P.(C) No.19519/2008 - 3 - In the result, this writ petition is ordered directing that the petitioner will release an amount of Rs.22 lakhs to the first respondent, within a period of one month from now and the first respondent shall receive it, without prejudice to its right to move against the third respondent for relief, in accordance with law, of recovery of the remaining outstandings, including interest, if any. If the petitioner does not pay the amount as afore-directed, respondents 1 and 2 will be at liberty to forthwith proceed with the impugned action subject to just exceptions in law. This judgment will not preclude the first respondent from paying off the debt. All other issues are left open. Sd/- THOTTATHIL B. RADHAKRISHNAN, JUDGE skr/29/9 // True copy // P.A. to Judge.