IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN FRIDAY, THE 18TH DECEMBER 2009 / 27TH AGRAHAYANA 1931 WP(C).No. 20938 of 2009(J) -------------------------- PETITIONER(S): --------------- M.SAHADEVAN, S/O. MADHAVAN, AGED 45 YARS, ANTHOOR THOTTAM HOUSE, AYALOOR VILLAGE,NEMMARA, PALAKKAD DISTRICT. BY ADV. SRI.C.P.PEETHAMBARAN SRI.S.KRISHNA PRASAD (AYALUR) RESPONDENT(S): --------------- 1. CANARA BANK,NEMMARA BRANCH, PALAKKAD, REPRESENTED BY ITS MANAGER. 2. VALLANGHY DESOM, (VELA COMMITTEE) NEMMARA, PALAKKAD, REPRESENTED BY ITS PRESIDENT. ADV. SRI.P.GOPINATH MENON, SC, CANARA BANK FOR R1 SRI.RAJESH SIVARAMANKUTTY FOR R2 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 18/12/2009,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.N.RAVINDRAN, J ....................... W.P.(C).20938/2009 ....................... Dated this the 18th day of December, 2009 JUDGMENT The petitioner was surety to a loan availed by Sri. Peethambaran on 2.2.2000 from the Canara Bank, Nenmara Branch. Sri.Peethambaran had also mortgaged an item of property, four cents in extent together with the residential building therein as security for the loan by depositing the title deeds. The principal debtor committed suicide on 11.5.2006. The petitioner had opened a recurring deposit account with the same branch of the Canara Bank and as on 13.3.2006 the sum of Rs.1,82,000/- was lying to the credit of the petitioner in the said account. Even while the principal debtor was alive, he had assigned the property mortgaged as security to the second respondent on 29.10.2001. It is stated that the said transfer was effected with the consent of the Canara Bank. The petitioner thereupon filed a suit O.S.No.334 of 2006 in the Court of the Subordinate Judge of Palakkad, contending that the bank should proceed against the security instead of exercising the banker's lien over the money lying in his recurring deposit account. In that suit, the bank entered appearance and filed a written statement. W.P.(C).20938/09 2 The dispute was ultimately settled out of court in the Lok Adalath held by the Palakkad Taluk Legal Services Committee and an award was passed on 13.12.2008. As per the terms of the settlement, the second respondent herein undertook to pay the mortgage debt of Rs.1,42,000/- to the first respondent bank on or before 12.4.2009. It was also agreed that upon such payment being made, the plaintiff will be at liberty to withdraw the money from his recurring deposit account. This writ petition was filed on 24.7.2009, contending that till date the second respondent has not deposited the mortgage debt, as a result of which the petitioner is put to serious prejudice. In this writ petition, relying on Ext.P4 award passed by the Lok Adalath, the petitioner seeks a direction to the first respondent to release the money lying to his credit in the recurring deposit account. The petitioner also seeks a direction to the first respondent to proceed against the second respondent to recover the mortgage debt. 2. When this writ petition came up for hearing on 9.9.2009, based on the submission made by the learned counsel appearing for the second respondent, this Court directed the second respondent to pay the sum of W.P.(C).20938/09 3 Rs.50,000/- towards settlement of Ext.P4 award within two weeks from that date. The petitioner was also directed to issue a statement showing the balance amount payable for satisfying Ext.P4 award. The second respondent was also directed to file an affidavit in this Court undertaking to pay that the amount covered by Ext.P4. Pursuant to the said order, the second respondent paid the sum of Rs.50,000/- on 18.9.2009. The second respondent also filed an affidavit dated 19.9.2009 undertaking to pay the balance amount in eight equal monthly instalments. The second respondent however contends relying on the statement of accounts furnished by the bank that the balance amount payable is only Rs.84,344/- 3. The learned standing counsel appearing for the bank has filed a statement stating that the statement issued by the bank to the effect that the money due under the award is Rs.84,344/- is erroneous. The learned counsel states that the award was for Rs.1,42,000/- and that as only Rs.50,000/- was paid pursuant to the order of this Court, the balance amount payable is Rs.92,000/- and not Rs.84,344/- as claimed by the second respondent. 4. I have considered the submissions made at the W.P.(C).20938/09 4 Bar by the learned counsel on either side. The liability of the second respondent to pay the sum of Rs.1,42,000/- in terms of Ext.P4 award is not in dispute. The petitioner is not liable to pay any amount to the first respondent under the said award. The property purchased by the second respondent was the security offered by the principal debtor when he availed a loan from the first respondent. Without the knowledge of the petitioner who was the surety to the loan transaction, the bank permitted the principal debtor to transfer the property to the second respondent. The bank thereafter proceeded against the petitioner. At that stage, he filed a suit which ended in Ext.P4 award. The second respondent does not dispute their liability to pay the sum of Rs.1,42,000/-, pursuant to Ext.P4 award. The time limit fixed by the Lok Adalath for payment of the said amount expired on 4.12.2009. More than seven months have passed thereafter. It was only after this Court had directed payment of Rs.50,000/- that any payment was made by the second respondent. That payment was effected only on 18.9.2009. As the second respondent has paid only the sum of Rs.50,000/- they are liable to pay the balance sum of Rs.92,000/- to the first respondent bank pursuant to Ext.P4 W.P.(C).20938/09 5 award. In such circumstances, I am of the opinion that the second respondent which earns a large amount during the festival season does not deserve any further leniency. I accordingly dispose of this writ petition with a direction to the second respondent to pay the balance amount of Rs.92,000/- towards full and final settlement of Ext.P4 award to the first respondent bank on or before 31.1.2010. If the second respondent does not pay the said amount on or before 31.1.2010, the bank shall proceed to attach the immovable properties belonging to the second respondent or the moneys lying in the bank accounts maintained by the second respondent. The bank shall without prejudice to that right forthwith permit the petitioner to withdraw moneys from the recurring deposit account maintained by him. P.N.RAVINDRAN, Judge mrcs