IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON TUESDAY, THE 22ND FEBRUARY 2011 / 3RD PHALGUNA 1932 WP(C).No. 12763 of 2010(U) -------------------------- PETITIONER: --------------- UNION BANK OF INDIA, MARINE DRIVE BRANCH, ERNAKULAM, REPRESENTED BY ITS CHIEF MANAGER. BY ADV. SRI.A.S.P.KURUP, SC, UBI RESPONDENTS: --------------- 1. THE SUB REGISTRAR, SUB REGISTRAR OFFICE, MAVELIKKARA.P.O. 2. M.G.JOHN, GRACE DAY, THAZHAKKARA, MAVELIKKARA.P.O. 3. AMMINI GEORGE, THAZHATHEDATH VEETTIL, MALAKKARA MURI, MAVELIKKARA. 4. K.O.DANIEL, KALIKKAL PUTHENVEETTIL, MAVELIKKARA. 5. T.V.GEORGEKUTTY, SHEEJA BHAVAN, CHENGANNUR. 6. K.YOHANNAN, MAMBRAYIL VEETTIL, MAVELIKKARA. 7. P.O.KUNJACHAN, MUNDANPLAVIL, THAMARAKKULAM, MAVELIKKARA. 8. BABY SHIBU, KALIKKAL PUTHENVEETTIL, MAVELIKKARA. 9. SASIDHARA PANICKER, PUTHENPURACKAL VEEDU, KURATHIKKAD, MAVELIKKARA. 10. P.G.RAJAMOHANAN, PANTHAPLAVIL VEEDU, THEKKAKARA, MAVELIKKARA. WP(C).No. 12763 of 2010(U) 11. GOPALA PILLAI, KAITHAKKOTTUSSERIL, KOMALLUR MURI, MAVELIKKARA. 12. SADDIQUEKUTTY, MUZHANGADIMALAYIL, CHERUVALLUR MURI, MAVELIKKARA. 13. SULAIMAN, VALIYAPARAMBIL, CHERUVALLUR, MAVELIKKARA. 14. MUHAMMEDKUNJ, PUTHURVADAKKETHIL, CHERUVALLUR, MAVELIKKARA. 15. N.G.UNNITHAN, RATNA BHAVAN, CHUNAKKARA, MAVELIKKARA. 16. SOMARAJAN NAIR, LAKSHMI SADANAM, CHUNAKKARA, MAVELIKKARA. 17. M.T.ABRAHAM, SECRETARY, PALACE RESIDENTS ASSOCIATION, MAVELIKKARA. 18. SABY T.GEORGE, THAZHATHEDATHU VEETTIL, MALAKKARA MURI, ARANMULA VILLAGE. 19. SMT.JAYASREE THAMPI, D/O.KRISHNAN NAIR, SWATHY, BHARANIKKAVU, PALLIKKAL.P.O, MAVELIKKARA VIA. 20. THE VILLAGE OFFICER, VILLAGE OFFICE, MAVELIKKARA. R1 BY S. GOVERNMENT PLEADER ADV. MR. ARAVINDA KUMAR BABU R2 BY ADV. SRI.SUBHASH CYRIAC R3 BY SRI.RASHEED C.NOORANAD R4 TO R9 BY SRI.V.M.KURIAN, SRI.K.T.THOMAS AND BY SRI.MATHEW B. KURIAN R10 BY ADV. MR. T.K.M.UNNITHAN & SRI V. JAYAKUMAR R11 BY SRI.P.B.SAHASRANAMAN , SRI.T.S.HARIKUMAR AND SRI.K.JAGADEESH R12 BY SRI.A.K.HARIDAS R15 AND R16 BY ADV. SRI.RINNY STEPHEN CHAMAPARAMPIL AND SMT.ASHA ELIZABETH MATHEW R19 BY ADV. SRI.K.SASIKUMAR, SRI.S.ARAVIND & SRI.P.JINISH PAUL THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 22/02/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 12763 of 2010(U) APPENDIX PETITIONER'S EXHIBITS: EXT.P1 : XEROX COPY OF SALE DEED NO. 2364/94 IN THE NAME OF 2ND RESPONDENT. EXT.P2 : COPY OF MEMORANDUM OF DEPOSIT OF TITLE DEED DATED 20.06.2008 DRAWN BY PETITIONER. EXT.P3 : COPY OF PUBLICATION OF POSSESSION NOTICE IN INDIAN EXPRESS DAILY DATED 25.10.2009. EXT.P4 : COPY OF LETTER NO.C.NO29/10 DATED 9.3.2010 ISSUED BY 1ST RESPONDENT TO PETITIONER EXT.P5 : COPY OF ENCUMBRANCE CERTIFICATE NO.1269/10 DATED 23.03.2010 ISSUED BY 1ST RESPONDENT. /TRUE COPY/ P.S. TO JUDGE. P.R. RAMACHANDRA MENON, J. .............................................................................. W.P.(C) No. 12763 OF 2010 ......................................................................... Dated this the 22nd February , 2011 J U D G M E N T the issue in this writ petition involves the relative rights and liabilities of the parties concerned with regard to a loan procured by the second respondent from the petitioner Bank creating security interest over the property in question and it also touches the rights and interests of the persons arrayed as respondents 3 to 18 who have obtained various decrees or orders of attachment over the property from the concerned civil courts, as to the liability to be cleared by the second respondent in respect of separate cause of action. 2. Inspite of service of notice, nobody has turned up on behalf of the second respondent . 3. Heard the learned Standing Counsel appearing for the petitioner Bank and the learned Counsel for the concerned respondents as well as the learned Government Pleader. W.P.(C) No. 12763 OF 2010 2 4. The position that emerges from the proceedings is that the second respondent had availed a loan as aforesaid from the petitioner Bank , which however was not repaid on time, leading to further steps declaring the account as 'NPA' and the Bank proceeded with steps invoking the remedy under the SARFAESI Act for realisation of the due amount. In the course of further steps, the sale was notified and conducted in accordance with the relevant provisions of the Act/Rules and the nineteenth respondent turned to be the successful bidder, who bid the property for a total sum of `.78 lakhs. It is stated that the entire bid amount stands deposited before the petitioner Bank on 01.02.2010. 5. The learned Counsel for the petitioner Bank submits that the total due amount in respect of the loan availed by the second respondent is only a sum of `.39,22,646.25/- and that the said amount has been appropriated from the sale proceeds. The balance amount of `. 38,77,353.75/- has been retained in a separate 'suspense account' in the name of the second respondent. The grievance of the petitioner Bank is that, inspite W.P.(C) No. 12763 OF 2010 3 of finalisation of the proceedings as above, when the 'sale Certificate' issued in favour of the 19th respondent was taken for registration before the first respondent, the request was not acceded to, stating that the document cannot be registered in view of various attachments, as communicated vide Ext. P4, which made the petitioner to approach this Court seeking for appropriate reliefs. 6. The learned Counsel appearing for the contesting respondents made a submission before this Court that, by virtue of the reliefs obtained from the competent civil courts with regard to the amount due to them, the said respondents are entitled to have it enforced against the 'balance amount' remaining at the hands of the petitioner Bank and that the same is not liable to be returned to the borrower. It is settled position of law, that attachment procured or any decree obtained by the third parties cannot have any priority rights over the Bank by virtue of the relevant provisions of the SARFAESI Act/Rules. Anyhow, the claim of the respondents 3 to 18 is only in respect of the 'balance amount' in the suspense account. W.P.(C) No. 12763 OF 2010 4 7. In so far as the concerned respondents do not have a case against the amount appropriated by the Bank pursuant to sale and since their contention stands confined to the residue available and further since, the particulars of attachment ordered by the civil courts are discernible from Ext. P5 encumbrance certificate produced before this Court, it is found fit and proper to direct the Bank to retain the said amount as it is, till appropriate orders are obtained by the second respondent enabling him to get the balance amount disbursed. The concerned respondents who are stated as having obtained verdicts/decrees/orders from the civil courts are at liberty to approach the civil courts by filing necessary petitions, impleading the bank in the party array as 'garnishee', and for other appropriate orders. Subject to the observation as above, the writ petition is disposed of. The balance amount, if any, after satisfying the liability of the respondents 3 to 18 as aforesaid can be returned to the second respondent, subject to the condition that there is no prohibitory order otherwise. 8. In the above circumstance, this Court finds that the W.P.(C) No. 12763 OF 2010 5 reasons pointed out by the first respondent vide Ext.P4 can no longer subsist. Accordingly, the first respondent is directed to register the 'Sale Certificate' to be presented by the 19th respondent, subject to the satisfaction of the statutory requirements in this regard. This shall be done as expeditiously as possible, at any rate, within 'one week' from the date of production of such proceedings along with a copy of this judgment. The Writ Petition is disposed of. P.R. RAMACHANDRA MENON, JUDGE. lk