IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON TUESDAY, THE 13TH JULY 2010 / 22ND ASHADHA 1932 WP(C).No. 2149 of 2009(E) --------------------------------------- PETITIONER(S): ------------------------ SUBRAMANYAN, AGED 42 YEARS, S/O.NAYADI, AYANIKKAD VEEDU, P.O.KOLATHARA, CHERUVANNUR, KOZHIKODE. BY ADVS. SRI.R.SUDHISH, SMT.M.MANJU. RESPONDENT(S): --------------------------- 1. FEROKE CO-OPERATIVE URBAN BANK LTD., NO.D 2640, FEROKE P.O., KOZHIKODE, REPRESENTED BY ITS GENERAL MANAGER. 2. BABURAJAN.M, AGED 30 YEARS, S/O.BHASKARAN, MANGANTHARA VEEDU, CHERUVANNUR AMSOM, KOZHIKODE. R1 BY ADV. SRI.DEVAPRASANTH.P.J. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 13/07/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.2149/2009 E APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE COMMON JUDGMENT DTD. 2/09/2008 IN RCA NOS.77/2008 AND 78/2008 OF RENT CONTROL APPELLATE AUTHORITY, KOZHIKODE. P2: COPY OF THE ORDER DTD. 23/10/2008 IN RCP NO.12/2007 OF ADDITIONAL MUNSIFF COURT, KOZHIKODE. P3: COPY OF THE O.S.658/2008 FILED BY THE PETITIONER BEFORE THE MUNSIFF COURT, KOZHIKODE. P4: COPY OF THE EXTRACT VERBATA OF THE BOARD. P5: COPY OF THE REPRESENTATION OF THE PETITIONER MADE TO THE BANK. P6: COPY OF THE REPLY DTD. 12/01/2009 ISSUED BY THE 1ST RESPONDENT. RESPONDENT'S EXHIBITS: N I L /TRUE COPY/ P.A.TO JUDGE Kss P.R.RAMACHANDRA MENON, J. --------------------------------------------- W.P.(C). NO.2149 OF 2009 ---------------------------------------------- Dated this the 13th day of July, 2010. JUDGMENT The petitioner has approached this Court seeking for issuance of a writ of mandamus directing the first respondent bank not to conduct sale of the petitioner's property having an extent of 4.5 cents comprised in Re. Sy. No. 193/3A of Cheruvannur Village of Kozhikode, till the final disposal of Ext.P3 civil suit pending before the Munsiff's Court, Kozhikode. 2. Facts narrated in the writ petition reveal that the petitioner is the absolute owner of the property in question, who was enjoying the same with exclusive possession. According to the petitioner, the 2nd respondent, who is a stranger, created some fabricated documents, as if the petitioner had effected conveyance of the above property in favour of 2nd respondent. Based on the said fabricated document a contention was raised by 2nd respondent that he had stepped into the shoes of the owner, having obtained W.P.(C). NO.2149 OF 2009 2 ownership, possession and title and was entitled to evict the petitioner from the premises and accordingly, a Rent Control Petition was filed as R.C.P.No. 12 of 2007 before the Rent Control Court-II, Kozhikode, obtaining an exparte interim order, which was taken up in appeal by the aggrieved party, by filing R.C.A. No. 77/2008 and 78/2008 before the Rent Control Appellate Authority, Kozhikode leading to Ext.P1 common verdict. After considering the rival contentions and the materials on record, the RCP was dismissed by the Rent Control Court, as not maintainable. 3. On coming to know that the alleged assignment deed was created in favour of the 2nd respondent, the petitioner filed O.S. 658/2008 before the Munsiff Court, Kozhikode seeking for a declaration that the same is null and void and to set aside the sale deed. The said proceeding (Ext.P3) is stated as pending consideration before the civil court. 4. While so, it came to the notice of the petitioner that, the 2nd respondent had approached the 1st respondent bank seeking for a loan on the strength of such fabricated document and the first respondent, without any hesitation W.P.(C). NO.2149 OF 2009 3 extended the loan facility allegedly on creating security interest in the property, which actually belongs to the petitioner. It is also stated that the petitioner did not come across any such proceedings earlier and it was only when the notice was published under the relevant provisions of SARFAESI Act, that petitioner came to realise the position as on date and immediately, Ext.P5 representation was filed before the bank with reference to the course and events; which however was replied by the bank as per Ext.P6, making their stand clear. The learned counsel submits that the proceedings are not to be pursued without any regard to the pendency of the civil suit and that the respondents are colluding together, quite detrimental to the interest of the petitioner, which is under challenge in this writ petition. 5. In spite of completion of service of notice, the 2nd respondent has not chosen to appear before this Court. Since the averments raised in the writ petition against the 2nd respondent have not been chosen to be rebutted, this Courts finds that there is considerable force in the submissions made from the part of the petitioner. W.P.(C). NO.2149 OF 2009 4 6. The learned counsel appearing for the first respondent bank submits that the bank is also a party to Ext. P3 civil suit, which is pending consideration before the Munsiff's Court, Kozhikode and that further proceedings will be pursued under the SARFAESI Act, only subject to finalisation of the above civil suit. 7. In the above circumstances, this Court finds that no further orders are necessary. Accordingly, the writ petition is disposed of, making it clear that the first respondent bank shall proceed against the property invoking steps under the SARFAESI Act, only subject to the outcome of O.S.No.658 of 2008 pending before the Munsiff's court, Kozhikode. The Writ Petition is disposed of accordingly. P.R.RAMACHANDRA MENON, JUDGE. mns