IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN TUESDAY, THE 31ST MARCH 2009 / 10TH CHAITHRA 1931 WP(C).No. 10005 of 2009(U) -------------------------- PETITIONER(S): --------------- ARCHANA.N, AGED 47, D/O.M.R.NATRAJAN, THALANCHERIPARAMBU, PANNIANKARA AMSOM, KALLAYI P.O., KOZHIKODE NOW RESIDING AT 'ARCHANA', MUTTATHUKONAM MURI, CHENNEERKARA VILLAGE, KOZHENCHERRY TALUK, PATHANAMTHITTA DISTRICT. BY ADV. SRI.P.HARIDAS RESPONDENT(S): --------------- 1. PATHANAMTHITTA DISTRICT CO-OPERATIVE BANK, REPRESENTED BY ITS GENERAL MANAGER, PATHANAMTHITTA. 2. THE AUTHORIZED OFFICER, PATHANAMTHITTA DISTRICT CO-OPERATIVE BANK, PATHANAMTHITTA. 3. P.G.ANILKUMAR, S/O.GANGADHARAN, GANGA BHAVAN, THITTAMEL, CHENGANNUR, NOW RESIDING AT HARI VIHAR, MUTTATHUKONAM MURI, CHENNEERKARA VILLAGE, KOZHENCHERRY TALUK, PATHANAMTHITTA DISTRICT. By SC P C SASIDHARAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 31/03/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOTTATHIL B RADHAKRISHNAN, J ........................................... WP(C).NO. 10005 OF 2009 ............................................ DATED THIS THE 31st DAY OF MARCH, 2009 JUDGMENT The petitioner obtained Ext.P1 decree for return of 40 sovereigns or equivalent of the same. That decree is dated 18.12.1992. Her estranged husband, third respondent is the debtor under that decree. Petitioner and her two children have also Ext.P2 order for maintenance under Section 125 of Code of Criminal Procedure in their favour. The petitioner states that respondents 1 and 2 are taking certain actions against an item of property, which earlier stood in the name of the third respondent and which was purchased by the petitioner in court auction in execution of Ext.P1 decree. Ext.P3 is the sale certificate in favour of the petitioner. That is issued on 4.4.2005. 2. In view of the aforesaid fact situation, the learned counsel for respondents 1 and 2 was to obtain instructions. He states that the third respondent had availed a loan from the first respondent and had created a mortgage of the property in question in favour of the first respondent on 21.8.2001 and the WP(C) 10005 OF 2009 2 entire loan amount was released to the third respondent on 25.8.2001. 3. With the aforesaid situation, it is beyond doubt that the sale in favour of the petitioner was after the mortgage in favour of the bank, which amounts to an encumbrance resulting in a charge which gets crystallised to a security interest by operation of the SARFAESI Act. I may also notice that Ext.P1 is only a decree for return of gold and in lieu thereof of the value of such property. That is not a decree for maintenance, the incidentals of which may slightly differ. Having thus noticed that there is no impact whatsoever on the title to the property of the third respondent when he created the mortgage, the sale in favour of the petitioner as per Ext.P3 has brought to her only the rights of third respondent which is, obviously, the equity of redemption, since that sale would be subject to the mortgage which is prior in point of time. Under such situation, the challenge of the petitioner to the impugned proceedings necessarily fails. In paragraph 7 of the writ petition, petitioner states that sometime in early 90's and having obtained a decree for return of gold and also an order for maintenance under Section 125 of code of WP(C) 10005 OF 2009 3 Criminal Procedure, the whereabouts of the estranged husband, third respondet is not known. She further states that among the two children, the younger one is a male, who is mentally challenged and petitioner has no income other than the support from the pension of her mother. Taking this situation into consideration, it requires some ameliorative relief. In the result, having regard to the totality of the facts and circumstances while affirming the impugned proceedings as one without any blemish of jurisdictional error or legal infirmity, this writ petition is ordered directing that the bank will defer any sale proceedings or actual dispossession to let the petitioner have three months time to find an alternate purchaser for the whole of the property or a purchaser who could take a portion of the property and pay off to the bank the total outstandings and thereby settle the transaction. On payment of the said amounts, the bank will release the property from the security interest so that the documentation could be done swiftly. If the petitioner makes appropriate request, the bank will consider her case sympathetically for waiver of any portion of the total outstandings, having regard to the peculiar facts and situation. WP(C) 10005 OF 2009 4 Writ petition ordered accordingly. It is also clarified that this judgment will not stand in the way of the petitioner herself paying off the entire amounts in any manner and clearing the transaction. THOTTATHIL B RADHAKRISHNAN, JUDGE lgk/1/4