IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN WEDNESDAY, THE 4TH FEBRUARY 2009 / 15TH MAGHA 1930 WP(C).No. 35646 of 2008(R) -------------------------------------- PETITIONER: ------------------- THATTAYIL BUKHARI S/O.ABDULLA , MANKADA PALLIPPURAM VALLIKKAPPATTA MALAPPURAM DISTRICT. BY ADV. MR. C.M.MOHAMMED IQUABAL. RESPONDENTS: ------------------------ 1. THE BRANCH MANAGER, MALAPPURAM SERVICE CO-OPERATIVE BANK, MALAPPURAM BRANCH, POST MALAPPURAM. 2. THE REGISTRAR OF CO-OPERATIVE SOCIETIES, MALAPPURAM. 3. KONNOLA ABDUL SAMAD, S/O.K.MOIDENKUTTY HAJI, DOWNHILL, POST MALAPPURAM, MALAPPURAM DISTRICT. *ADDL.R4. THE DEPUTY SUPERINTENDENT OF POLICE, CRIME DETACHMENT, MALAPPURAM. *IS IMPLEADED AS ADDL. R4. AS PER ORDER DTD. 05/12/08 IN I.A. NO. 15670/08. R1 BY ADVS. MR.V.G.ARUN, MR.T.R.HARIKUMAR, R3 BY ADV. MR. VINOD RAVINDRANATH. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 04/02/2009,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.35646/2008-R: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE MARRIAGE CERTIFICATE ISSUED BY THE KHASI NASIRUDHEEN SANGHAM JUMA MASJID MAHALLU COMMITTEE DTD. 15/12/2007. EXT.P.2: COPY OF THE LETTER ISSUED BY THE R1. BANK TO THE PETITIONER DTD. 17/03/2008. EXT.P.3: COPY OF THE STATEMENT FILED BEFORE THE R.1. BANK DTD. 30/06/2008. EXT.P.4: COPY OF THE STATEMENT FILED BY THE BANK IN CRLM.C. 2423/2008 DTD. 28/10/08. EXT.P.5: COPY OF THE ORDER IN CRL.M.C. NO. 2423/2008 DTD. 26/11/2008. RESPONDENTS' EXHIBITS: NIL. //TRUE COPY// P.S. TO JUDGE. Prv. THOTTATHIL B. RADHAKRISHNAN, J. = = = = = = = = = = = = = = = = = = = = = = = = W.P.(C).No.35646 of 2008-R = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 4th day of February, 2009. JUDGMENT 1.Th third respondent is one Abdul Samad. He is stated to be the brother-in-law of Bukhari, the writ petitioner. The third respondent availed a loan from the first respondent. The property of the writ petitioner was the collateral security for that loan. On default in repayment, the first respondent initiated arbitration proceedings under the KCS Act. In defence, the writ petitioner Bukhari contended that the alleged loan transactions were created when he was out of India and there is fraud and fabrication in the matter. The arbitrator answered the case against the bank. That was challenged by the bank before the Co-operative Tribunal. The Tribunal reversed the award and granted an award in favour of the bank. By that process, it goes without saying WP(C)35646/2008 -: 2 :- that the plea of the petitioner that the mortgage was fraudulent and fabricated and cannot be acted upon, stood overruled for all intents and purposes. That is a judicial proceeding for the purpose of the protective provisions contained in the Crl.P.C which insulates against any criminal proceeding arising from such proceedings in as much as any further complaint regarding falsity and fabrication of evidence and production in court would only be then at the instance of that court, which again is a matter for consideration by that authority only, in terms of the Code of Criminal Procedure. 2.In the meanwhile, it appears that on the basis of the complaint of the petitioner Bukhari and yet another person, the Joint Registrar made a complaint to the police and an FIR was registered in relation to two transactions. One among those transactions is the transaction between the petitioner and the third respondent. Another is a total different transaction. But, in so far as WP(C)35646/2008 -: 3 :- the transaction between the petitioner and the third respondent with the bank is concerned, the parties are concluded by the award of the Co- operative Tribunal which, it is stated, was also subject matter of a writ petition before this Court. That writ petition was also closed since the parties availed the benefit of OTS scheme pending that writ petition and also settled the transaction to the satisfaction of the bank. So much so, the loan provided by the first respondent, i.e., Loan No.SEL-20, no more survives either for recovery or for enforcement. 3.For the aforesaid reasons, the petitioner is entitled to have his title deeds back, particularly when if at all, there could be any further proceedings by the police in relation to the transaction, the findings of the Co-operative Tribunal regarding the genuineness of the transaction will stare. In the result, this writ petition is allowed WP(C)35646/2008 -: 4 :- ordering that the documents of the petitioner deposited with the first respondent for the purpose of Loan No.SEL-20 shall be returned by the bank. It is further clarified that this judgment does not touch upon any proceedings in relation to a different transaction which is also part of the FIR referred to above. THOTTATHIL B. RADHAKRISHNAN, JUDGE. Sha/120209