IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON MONDAY, THE 23RD MAY 2011 / 2ND JYAISHTA 1933 WP(C).No. 38208 of 2010(A) -------------------------- PETITIONER: --------------- THE PRIMARY CO-OPERATIVE AGRICULTURAL AND RURAL DEVELOPMENT BANK LTD.,NO.A159, THIRUVALLA,REP.BY ITS SECRETARY. BY ADV. SRI.GEORGE CHERIAN (THIRUVALLA) RESPONDENTS --------------- 1. THE TAHSILDAR, TALUK OFFICE, CHENGANNUR,PIN 689 121. 2. THE SALE OFFICER,THE PRIMARY CO-OP. AGRICULTURAL AND RURAL DEVELOPMENT BANK LTD., NO.A159,THIRUVALLA. 3. PRASANNAKUMAR,S/O.ANANDAVALLY AMMA, PERUMALETHU HOUSE,KADAMBOOR,ENNEKADU,CHENGANNUR, PIN 689 121. 4. SUSEELKUMAR,S/O.ANANDAVALLY AMMA, PERUMALETHU HOUSE,KADAMBOOR,ENNEKADU,CHENGANNUR, PIN 689 121. 5. SREEKUMARI,AGED 38 YEARS, PERUMALETHU HOUSE,KADAMBOOR,ENNEKADU,CHENGANNUR, PIN 689 121. 6. SREELEKHA,AGED 36 YEARS, PERUMALETHU HOUSE,KADAMBOOR,ENNEKADU,CHENGANNUR, PIN 689 121. 7. P.V.BHANU VIKRAMAN PILLAI, AGED 71, S/O.VELAYUDHA KARANAVAR,KUNNINETH HOUSE, CHERIYANAD VILLAGE, EDAVANKADU,CHENGANNUR TALUK, PIN 689 121. BY GOVERNMENT PLEADER ADV. MR. T.K. ARAVINDAKUMAR BABU. R4 TO R6 BY ADV. SRI.N.N.SUGUNAPALAN, SENIOR ADVOCATE AND ADV. SRI.S.SUJIN R7 BY ADV. SRI.P.HARIDAS AND ADV. SMT.S.SIKKY THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 23/05/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 38208 of 2010(A) APPENDIX. PETITIONER'S EXHIBITS: EXT.P1 : TRUE COPY OF THE SALE NOTICE DATED 22.02.2010 ISSUED BY THE SALE OFFICER. EXT.P2 : TRUE COPY OF THE W.P.(C) 1183/10 BEFORE THIS HON'BLE COURT EXT.P3 : TRUE COPY OF THE JUDGMENT DATED 07.04.2010 IN W.P.(C) 11183/10.. EXT.P4 : TRUE COPY OF THE APPLICATION TO THE FIRST RESPONDENT . EXT.P5 : TRUE COPY OF THE TAX RECEIPT DAT ED 23.08.96 ISSUED Y ENNAKAD VILLAGE OFFICE. EXT.P6 : TRUE COPY OF THE SURVEY PLAN IN RESPECT OF FIELD NO.146 IN BLOCK NO.4 OF ENNAKAD VILLAGE. EXT.P7 : TRUE COPY OF THE PLAINT IN OS.NO.203/10 BEFORE MUNSIFF COURT, CHENGANNUR. EXT.P8 : TRUE COPY OF THE PLAN PREPARED BY RETIRED TALUK SURVEYOR. RESPONDENTS' EXHIBITS: EXT.R7(a) : TRUE COPY OF THE TAX RECEIPT NO. 18 DATED 18.11.1984. EXT.R7(b) : TRUE COPY OF THE REPRESENTATION DATED 30TH DAY OF JULY 2010 EXT.R7(c) : TRUE COPY OF THE LETTER NO. LRM(1) 7929/2010 DATED 15.12.2010. EXT.R7(d) : TRUE COPY OF THE COMMISSIONER REPORT AND ROUGH SKETCH DATED 04.08.2010. /TRUE COPY/ P.S. TO JUDGE. P.R. RAMACHANDRA MENON, J. .............................................................................. W.P.(C) No. 38208 OF 2010 ......................................................................... Dated this the 23rd May , 2011 J U D G M E N T The petitioner, a Primary Co-operative Bank in the rural sector is stated as constrained to approach this Court because of the adverse consequences resulted in view of Ext. P3 judgment passed by this Court in W.P.(C) No. 11183 of 2010, without impleading the petitioner in the party array but for some other Banks in the Co-operative Sector, shown as the first respondent therein, disposing of the matter right at the admission stage. 2. The case of the petitioner Bank is that because of the collusive attempt made, the respondents 4 to 6 herein (the petitioners to the earlier writ petition) and some other respondents, particularly the 7th respondent herein, the sale of the property mortgaged to the Bank is caused to be stalled; whereby the Bank has virtually been prevented from realising the amount due from the defaulters under the loan transaction. 3. The sequence of events, as borne by the pleadings on record shows that the petitioner Bank had extended financial W.P.(C) No. 38208 OF 2010 2 assistance to the third respondent and his mother late Anandavally Amma in the year 1996, based on the collateral security furnished by way of mortgage of different items of property of the mother of the 3rd respondent. Despite the assurance and undertaking, the repayment was not effected on time as scheduled and the liability got mounted up. In the meanwhile, the mother of the third respondent took her least breath on 25.12.2008, whereupon the respondents 3 to 6 became the joint owners of the assets belonged to the late Anandavally Amma, being the legal heirs. 4. The petitioner Bank took steps to realise the due amount by causing the properties to be sold, as borne by Ext. P1 sale notice, which was issued by the second respondent/sale officer. The respondents 4 to 6 herein chose to challenge the same by filing W.P.(C)No.11183 of 2010 contending that the Bank, if aggrieved, had to proceed against the assets of the third respondent first; which by itself, by virtue of the higher market value, would be enough to settle the entire liability, before proceeding against the property devolved upon the said W.P.(C) No. 38208 OF 2010 3 respondents as the legal heirs of the deceased Anandavally Amma. 5. When the matter came up for admission before this Court on 07.04.2010, it was observed by this Court that there was no representation for the first respondent Bank and taking note of the submission made by the learned Counsel for the petitioner as to the property having an extent of 15.85 Ares in R.Sy., No. 146/10 of the concerned village belonging to the third respondent herein ( 5th respondent in the above case, who was stated as the principal debtor), the writ petition was disposed of, directing the sale officer to conduct sale of the said 15.85 Ares of land comprised in R.Sy.No.146/10 at the first instance and to permit the petitioners therein ( respondents 4 to 6 herein) to pay the balance amount, if any due, after the sale of the property. It was also made clear that the sale of the property belonging to the petitioners in W.P.(C) 11183 of 2010 (respondents 4 to 6 herein) shall be conducted only if they did not pay the balance amount found due after the sale of the property of the 3rd respondent herein (5th respondent therein). W.P.(C) No. 38208 OF 2010 4 6. The case of the petitioner Bank is that though the Bank was not made a party nor was heard before passing Ext. P3 judgment, since the amount due was otherwise protected by virtue of the collateral properties offered as security, the Bank chose to honour the mandate given in Ext.P3 judgment in the right perspective and proceeded to get the property of the third respondent measured out and sold in public auction. It was revealed then, that out of the total extent of 15.85 Ares in R.SyNo. 146/10 in the concerned village belonging to the third respondent as covered by Sale Deed 668/96, some portion was in possession of the neighbour. Apprehending coercive steps, the 7th respondent neighbour filed O.S.No. 203/10 before the Munsiff's Court, Chengannur for injunction, for restraining the defendants from trespassing into the plaint schedule property described as 22 cents (8.88 Ares) in R.Sy.No.146/9 and 146/10 of the concerned village (as described in Ext.P7 Plaint). The case of the petitioner is that, on getting the property measured out through a retired Taluk Surveyor, the actual extent now in possession of the third respondent was revealed as 12.53 Ares in W.P.(C) No. 38208 OF 2010 5 R.Sy.No.146/10 of the concerned village and that there was an encroachment of 8.675 cents of land by the owner of the property on the southern side. This made the petitioner Bank to approach this Court by filing the present writ petition, seeking for a direction to be given to the sale officer to conduct sale of 12.53 Ares in R.Sy.No. 146/10 of Ennakkad village in Chengannur Taluk and to proceed with sale of the other items of the property mortgaged to the petitioner by the third respondent and his deceased mother, till the entire amount due to the petitioner is recovered. 7. Notice by Speed Post was ordered on 22.12.2010. Service is complete and the respondents 4 to 6 jointly and the 7th respondent on his own, have filed separate counter affidavits. Respondents 4 to 6 have virtually reiterated the contentions as taken in the earlier writ petition filed by them - W.P.(C)No.11183 of 2010, simultaneously adding that if any portion of the property owned by the third respondent had been encroached by somebody else, reducing the actual extent of 15.85 Ares to 12.53 Ares, it was for the petitioner to have taken W.P.(C) No. 38208 OF 2010 6 necessary steps to recover the 'deficit extent' from the encroacher. The 7th respondent has contended that the petitioner had not appeared before this Court when Ext.P3 judgment was passed in W.P.(C)No.11183 of 2010 and that the remedy of the petitioner, if aggrieved of Ext. P3, was to have filed a Review Petition and not a fresh writ petition. The allegation of encroachment by the said respondent is also denied; simultaneously raising some other contentions as well including as to the pendency of the Civil Suit before the Munsiff's Court, Chengannur. 8. Coming to the quantum of liability to be satisfied to the writ petitioner, it remains a fact that the amount was borrowed by the third respondent and his deceased mother creating mortgage over their properties. It is also an admitted fact that the respondents 4 to 6 herein, who were the writ petitioners in W.P.(C) No.11183 of 2010 claim title under the deceased mother of the third respondent as her legal heirs (along with the third respondent). The liability to be satisfied to the petitioner Bank is not in dispute. As such, the creditor Bank is entitled to proceed W.P.(C) No. 38208 OF 2010 7 against the property of the borrowers or any other property, over which mortgage has been created by the concerned parties. There is no vested right for the persons like the respondents 4 to 6 to contend that the property of the deceased mother, now at their hands as the legal heirs could be proceeded against only after proceeding against the property of the third respondent . 9. The scope of Ext.P3 judgment passed by this Court is very limited. It was solely based on the submission made by the learned Counsel for the writ petitioners (respondents 4 to 6 herein) that the property of the third respondent was having much higher market value, the sale of which would be more than sufficient to satisfy the entire liability, that the matter was disposed of, permitting steps against the other properties only in the event of any deficit/shortage in the sale proceeds. No decision was rendered on merits in the said case; more so, when it was disposed of at the admission stage, without ordering notice to the respondents. 10. In view of the assertion made by the respondents 4 to 6 herein that W.P.(C) No.11183 of 2010 was not contested by W.P.(C) No. 38208 OF 2010 8 the Bank while passing Ext. P3 judgment, this Court found it fit and proper to call for 'Judge's papers' and on perusal of the proceedings, it was seen that the matter was not admitted and no notice was ordered, though a copy of the writ petition was served on the Counsel by name Mr. M. Rajagopalan Nair, who was stated as the Standing Counsel for the first respondent therein. Since there was no instruction from the part of the first respondent when the matter was taken up for consideration on 07.04.2010, it happened to be observed by this Court that there was no representation for the 1st respondent and the matter was finalised as per Ext.P3 judgment . But the fact remains that the first respondent in the above proceedings is “Kerala State Co- operative Agricultural and Rural Development Bank Ltd.”, whereas the actual party who is the petitioner herein is the Primary Co-operative Agricultural and Rural Development Bank Ltd.” entirely a different entity. It is stated that there is no Standing Counsel for the petitioner, though the first respondent in W.P.(C)No. 11183 of 2010, being a different entity, was having a separate Standing Counsel of their own, who had W.P.(C) No. 38208 OF 2010 9 accepted the copy of the said proceedings at the admission stage, but did not turn up thereafter; probably for the fact that the said respondent was in no way connected with the cause of action projected in the writ petition. This being the position, Ext.P3 judgment passed by this Court without the present petitioner in the party array cannot be held as binding on the petitioner Bank. Nobody else other than the respondents 4 to 6 herein are to be blamed in this regard, as the Writ Petition No.11183 of 2010 was filed by the said respondents, wrongly showing another entity as the first respondent in the party array. 11. The materials on record reveal that Ext.P7 plaint has been filed by the 7th respondent herein seeking for a permanent prohibitory injunction, without the owner of the property (i.e, the third respondent) in the party array, but for including the State, Revenue authorities and the present writ petitioner. It is the specific case of the writ petitioner that the total extent of 15.85 Ares of land comprised in R.Sy.No.146/10 of the concerned Village stated as belonging to the third respondent is not available as on date, but for an extent of 12.53 Ares; the balance W.P.(C) No. 38208 OF 2010 10 having been encroached by a neighbour. In any view of the matter, such encroachment, if any, cannot bar the way of the petitioner Bank in realising the due amount by proceeding against the available extent and to pursue the matter further by proceeding against the other available properties. It is for the third respondent or others claiming under him to proceed against the encroacher, if he /they are aggrieved in any manner and may contest the suit by getting themselves impleaded in O.S.No.203/10 stated as pending before the Munsiff's Court, Chengannur or by resorting to such other steps/proceedings. 12. In the above circumstance, this Court finds that the writ petitioner is entitled to succeed. The second respondent/sale officer is at liberty to proceed with the sale of the available extent of mortgaged land in R.Sy.No.146/10 of Ennakkad Village in Chengannur Taluk, after getting the same measured out with the help of revenue authorities or may proceed with appropriate steps to cause the sale of other mortgaged properties for realisation of the amount due to the petitioner Bank. However it is made clear that only the requisite/reasonable extent as W.P.(C) No. 38208 OF 2010 11 necessary shall be put to sale. The Writ Petition is allowed. No cost. P.R. RAMACHANDRA MENON, JUDGE. lk