IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN TUESDAY, THE 23RD DECEMBER 2008 / 2ND POUSHA 1930 WP(C).No. 35944 of 2008(D) -------------------------- PETITIONER: --------------- K.H.ABDUL MAJEED, AGED 44, S/O.HASSAN, ELLICKAL HOUSE, PATHADIPALAM, CHANGAMPUZHA NAGAR, ERNAKULAM, COCHIN - 33. BY ADV. SRI.N.K.MOHANLAL RESPONDENTS: --------------- 1. URBAN CO-OPERATIVE BANK, REPRESENTED BY ITS CHIEF MANAGER, M.G.ROAD, ERNAKULAM. 2. THE AUTHORISED OFFICER, U C O BANK, M.G.ROAD, ERNAKULAM. *3. K.H. MUHAMMED ALI, ELLICKA HOUSE, PATHADIPALAM, CHANGAMPUZHA NAGAR, ERNAKULAM, COCHIN 33 (impleaded as Respondent No. 3) R1 AND R2 BY ADV, SRI. P.B. SAHASRANAMAN R3 BY ADV. SRI.T.A.SHAIN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 23/12/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOTTATHIL B. RADHAKRISHNAN, J. ------------------------------------------------------ W.P.(C) NO. 35944 OF 2008 (D) ------------------------------------------------------ Dated this the 23rd day of December, 2008 J U D G M E N T This writ petition was filed on 04-12-2008. On 05-12-2008, I recorded that this writ petition cannot be considered without all co- obligants being on array. I.A.No.15790/2008 was allowed on 10-12-2008 impleading the co-obligant. On that day, the bank stated that sale did not take place. At the request of the petitioner, it was adjourned to 12-12-2008. On 12-12-2008, notice was issued before admission to the additional third respondent by speed post. As per office records, notice to the third respondent is yet to be served. Third respondent appears through his learned counsel. There is really no shred of urgency in this matter. It is unfortunate that this matter has been brought out invoking Section 8 of the Kerala High Court Act and Rules. 2. The petitioner states that he is only a guarantor and has effected only a security for a loan availed by his brother, the third respondent and that the properties belonging to the third respondent as W.P.(C) No.35944/2008 - 2 - scheduled in Exhibit P1 and P2 is sufficient to wipe off the entire outstandings and that therefore, petitioner's property, which is also undisputedly mortgaged, need not be sold. It is argued that in terms of the SARFAESI Act and the Security Enforcement Rules, only such portion of the property as is necessary to generate the entire outstandings need be sold. Petitioner is Sri.Abdul Majeed and his brother Muhammed Ali is the third respondent. Item Nos.1 and 2 in Exhibit P1 are 4.10 cents and 12.950 cents respectively. Those parcels belong to the third respondent. Item No.3 in Exhibit P1 is 13.020 cents. That belongs to the petitioner. Those three pieces lie in Sy.No.530/2005. Neither the petitioner, nor the third respondent contradicts the inference available that the three plots lie contiguously. Not only that, each among the item No.1, item No.2 and item No.3 has an industrial shed. These three industrial sheds obviously show that this is a single establishment. The borrower is “Illikkal Enterprises”. Even if the petitioner describes himself as only a guarantor for the loan availed by his brother, the third respondent, I am not prepared to accept W.P.(C) No.35944/2008 - 3 - the contention of the petitioner and the argument on his behalf that the bank should bifurcate the property in such a way and sell it to reach at its dues, however preserving the property of the petitioner. The total outstandings due as on 1-7-2007, it is more than 1½ years ago, was Rs.43,05,996.65. By now, interest and other accruals would have got added on. The reserve price is fixed at Rs.1,25,00,000/- (Rupees one crore twenty five lakhs only). Even if the petitioner or his brother third respondent has a genuine plea that the entire parcel need not be sold and that the property is a very valuable one, it will be open to them to offer a purchaser who may need only a portion of the entire extent and pay off the entire amounts due to the bank. I do not find any jurisdictional error or legal infirmity in the impugned proceedings. This writ petition fails and the same is accordingly dismissed. Sd/- THOTTATHIL B. RADHAKRISHNAN, JUDGE skr/23/12 // True copy // P.A.to Judge.