IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE K.VINOD CHANDRAN MONDAY, THE 28TH NOVEMBER 2011 / 7TH AGRAHAYANA 1933 WA.No. 344 of 2011() -------------------- AGAINST THE JUDGEMENT IN RP.776/2010 Dated 02/09/2010 .................... APPELLANTS/RESPONDENTS 1 &2 IN WP(C) / PERTITIONERS IN RP: ---------------------------------------------------------------------------------- 1. THE SOUTH INDIAN BANK LTD., REGIONAL OFFICE, KAKKANATTU APARTMENTS, ST. PETERS JUNCTION, PATHANAMTHITTA-689613, REPRESENTED BY ITS CHIEF MANAGER. 2. THE CHIEF MANAGER (AUTHORISED OFFICER) SOUTH INDIAN BANK LTD., KAKANATTU APARTMENTS, ST. PETERS JUNCTION, PATHANAMTHITTA - 689613. BY ADV. SRI.GEORGE VARGHESE (MANACHIRACKEL) RESPONDENT/PETITIONER AND 3RD RESPONDENT IN WPC/RESPONDENTS(R.P): ------------------------------------------------------------------------------------------------------- 1. AMBILY.T.V, THUNNIMOOTTIL, AMBILY BHAVAN, PARAKKONAM, THOTTUPURAM, PATHANAMTHITTA 689 645. 2. ANIL KUMAR.P, THUNNIMOOTTIL, AMBILY BHAVAN, PARAKKONAM, THOTTUPURAM, PATHANAMTHITTA 689 645. BY ADV. SRI. D. KISHORE THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 28/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: jma C.N. RAMACHANDRAN NAIR, & K. VINOD CHANDRAN, JJ ---------------------------------------------------- W.A No. 344 of 2011 ---------------------------------------------------- Dated this the 28th day of November, 2011 J U D G M E N T C.N. Ramachandran Nair , J This belated appeal is filed against the judgment of the learned Single Judge. We have heard the counsel appearing for the appellant and counsel appearing for the first respondent. Second respondent is the husband of the first respondent and he is not so far served with a copy of this Writ Appeal. However, since the respondents have no conflict of interest in the matter we heard the counsel for the appellant Bank and also the counsel for the first respondent. 2. Appellant's grievance is that the respondents committed default in the repayment of house building loan. On default in repayment of the house loan they filed suit before the Civil Court and got a decree. Even after getting the decree, the appellant, instead of proceeding to execute the decree by attachment and sale of the house; initiated proceedings under the Securitisation Act for sale of the W.A 344/2011 : 2 : property. The Respondents approached this Court by filing W.P.(C) and prayed for a limited relief for regularising the loan by clearing the arrears and accrued interest in instalments, which was granted by the learned Single Judge, against which a review filed is also dismissed by the learned Single Judge. It is against the judgment that the Bank has come up with this appeal. 3. The learned Standing Counsel for the Bank submitted that the Bank has got a judgment and decree AND the title deed over which the bank has security interest is filed before the Civil Court. According to the appellant, when decree is passed by the Civil Court, the learned Single Judge should not have interfered with the matter which has effect of stopping execution of decree. Counsel for the first respondent on the other hand submitted that the respondents only challenged Securitisation proceedings in this Court and in the discretionary jurisdiction, the learned Single Judge granted a very limited relief of a facility to clear the instalment arrears in three instalments along with the payment of regular instalments on due dates. After hearing both sides we do not W.A 344/2011 : 3 : find any justification for interference because the relief granted by this Court is only an equitable relief normally granted to similarly placed persons particularly in respect of house building loans. It is the case of the first respondent that she deserves sympathetic consideration because she, the principal debtor is only a low paid employee that too a lady working in a petrol bunk. It is admitted in Court that the respondents have complied with judgment of the learned Single Judge by clearing the instalment arrears and the accrued interest in instalments and are paying regular instalments. The apprehension of the bank that the bank has lost the security is not correct because charge created in respect of the property will continue in force until arrears are cleared. 4. We direct the Sub Court, Pathanamthitta to deliver back the original title deeds deposited in OS No.34/2009 to the Manager of the bank for being retained by the bank until the loan is cleared. In other words, we declare that the bank is entitled to retain the lien and proceed to recover the entire arrears due along with interest and other charges in terms of W.A 344/2011 : 4 : loan agreement which right is not affected on account of the judgment of the learned Single Judge. However, execution of decree will remain stayed, until such time the respondents clear the regular loan instalments as per the judgment. Writ Appeal is disposed of with specific direction to the first respondent to handover possession of the building to the appellant on default of two consecutive instalments and in that event the bank can proceed with the sale of the property. Sd/- C.N. RAMACHANDRAN NAIR (Judge) Sd/- K. VINOD CHANDRAN (Judge) jma //true copy// P.A to Judge