IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON THURSDAY, THE 3RD JUNE 2010 / 13TH JYAISTHA 1932 WP(C).No. 31094 of 2009(F) -------------------------- SA.192/2008 of DEBT RECOVERY TRIBUNAL, ERNAKULAM CMP.6560/2009 of C.J.M., ALAPPUZHA .................... PETITIONERS: --------------- 1. P.R.RAJESH,S/O.RAJAPPAN, PUTHENPARAMBIL HOUSE, PULINKUNNU, ALAPPUZHA. 2. ARCHANA RAJESH, W/O.RAJESH, PUTHENPARAMBIL HOUSE, PULINKUNNU,ALAPPUZHA. BY ADV. SRI.S.SANAL KUMAR RESPONDENT: --------------- CHIEF MANAGER,STATE BANK OF INDIA, REGIONAL BUSINESS OFFICE, BEACH ROAD, ALAPPUZHA. BY ADV. SRI.K.K.CHANDRAN PILLAI, SC. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 31/05/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.R. RAMACHANDRA MENON, J. .............................................................................. W.P.(C) No. 31094 OF 2009 ......................................................................... Dated this the 3rd June, 2010 J U D G M E N T The petitioners are husband and wife. They have approached this Court mainly seeking for issuance of a writ of mandamus to the respondent Bank to release the title deeds in respect of Item no. 2 of the property mentioned in Ext.P1 on payment of the balance amount calculated as per Ext.P1 sale notice and for other incidental reliefs. 2. The petitioners had availed a loan of Rs. 60 lakhs in the year 2006 from the responent Bank creating security interest over the properties of 10.06 Ares and an extent of 8.09 Ares which are lying as a contiguous block and another property of 3.40 Ares which forms the residential premises of the petitioners. Over and above the said amount, some other liability was also there, which was due to be satisfied to the Bank and the total amount due to be cleared was Rs.84,32,167/-. W.P.(C) No. 31094 OF 2009 2 It is stated that the petitioners had also some other transactions with the ADB branch of the SBI, Alappuzha, from where, a sum of Rs. 30 lakhs was aviled for running a petrol bunk, on the security of 11 acres of land, which however is not connected with the issue projected in the present case. 3. When the petitioners turned to be defaulters, the Bank declared the account as 'NPA' and issued possession notice on 30.05.2007. When the Bank proceeded with further steps invoking the provisions under Section 14 of the SARFAESI Act before the District Magistrate, the petitioners approached this Court by filing W.P(C) No. 5917 of 2008, which led to Ext.P2 judgment, declining interference and relegating the petitioners to DRT, pursuant to which Ext.P3 was filed (S.A.No.192 of 2008). Since there was no Presiding Officer in the DRT, the petitioners approached this Court with W.P.(C) Nos. 32048 and 32428 of 2008, which were dismissed as per Ext.P4 judgment dated 09.12.2008, against which the petitioners preferred W.A.No. 123 of 2009 and W.A.No.104 of 2009. 4. After hearing both the sides, Ext.P5 judgment was W.P.(C) No. 31094 OF 2009 3 passed in W.A. No. 104 of 2009 by the Division Bench directing the DRT to finalise the proceedings . Even though the DRT granted an interim order, the same was not complied with. Thereafter, on dismissal of the I.A, the petitioners approached the DRAT, where interference was declined. Challenging the order passed by the DRAT, the petitioners preferred C.R.P.(PD) No.1663 of 2009 before the Madras High Court, where an interim order was passed, subject to the condition that the petitioners deposited a sum of Rs.12.5 lakhs, which is stated as complied with. Subsequently, CRP was dismissed, observing that the course being pursued by the petitioners was only to protract the matter. 5. In the meanwhile, the property of 45 cents of land, lying as a continuous and contiguous block, i.e, Item No.1, was sold in public auction on 10.07.2009, securing a sum of Rs. 81 lakhs. The sale has been subjected to challenge by filing Ext. P8 proceedings before the DRT and the same is pending. In the course of the proceedings, the petitioners filed Ext.P10 Interlocutory Application before the DRT, referring to the figures W.P.(C) No. 31094 OF 2009 4 in Ext.P1 Sale Notice and seeking for permission to permit the petitioners to pay the balance of Rs.13,48,608/- cleared and thus to have the residential property saved. It is stated that the Bank refused to have such a course, unless specific orders were given by the Tribunal and it was accordingly that the said I.A was filed. After hearing both the sides, the DRT dismissed the said I.A. by Ext.P13 order, which is subjected to challenge in this Writ Petition. 6. In the course of the proceedings, the petitioners filed Ext. P14 petition before the concerned C.J.M. Court, to recall the earlier order appointing the Advocate Commissioner under Section 14 of the SARFAESI Act. This was dismissed as per Ext.P15 order, which is also subjected to challenge in this Writ Petition. 7. The learned Counsel for the Bank submits with reference to the contents of the counter affidavit that, over and above the submissions made from the part of the petitioners, something more is there; in so far as the petitioners had approached various other Forum including CDRF and also this W.P.(C) No. 31094 OF 2009 5 Court by filing W.P.(C) No. 13263 of 2009, (which was filed by the mother of the first petitioner herein). It is also brought to the notice of this Court that the petitioners could not establish their case or succeed in any such proceedings and it is after pursuing such exercise, that the present Writ Petition has been filed seeking to protract things further. 8. With regard to the liability to be satisfied by the petitioners, the Bank has given the facts and figures. In paragraph No.20 of the counter affidavit, it is stated that in respect of the Kayamkulam Branch, the total liability will come about Rs.1,32,94,728/- and that by virtue of sale of the first two items Rs.81,02786/- has been realised, simultaneously adding that incidental expenses and cost will come about Rs. 7 lakhs. Thus the balance to be recovered from the above items is about Rs.59 lakhs. It is stated in the said paragraph read with paragraph Nos. 18 and 22 that the Bank is ready and willing to record full and final satisfaction in respect of the above properties, provided the petitioners paid the balance amount of Rs. 40 lakhs (Rupees forty lakhs only) on or before 31.12.2009, W.P.(C) No. 31094 OF 2009 6 despite losing a sum of Rs.19 lakhs to the Bank in respect of the said transaction. 9. The learned Counsel for the Bank submits that the Bank has already approached the DRT with O.A. 220 of 2007 for realisation of the various amounts due from the petitioners and others connected with the transaction, particularly in view of the common securities involved. It is also stated that the amount that is being offered from the part of the petitioners, if satisfied, will be given due credit in the said proceedings initiated under the SARFAESI Act. 10. The learned Counsel for the petitioners submits that the petitioners are ready and willing to satisfy the balance amount of Rs.40 lakhs. Eventhough there is a contention for the Bank that the offer was made subject to the condition that it was satisfied on or before 31.12.2009, to put a quietus to the matter, this Court finds it fit and proper to give an opportunity to the petitioners to have the above amount cleared forthwith; so as to have release of 8.09 Ares (residential property), which was surrendered by the petitioners on 12.11.2009 as per Exts. W.P.(C) No. 31094 OF 2009 7 P17 and P18. All the contentions raised in respect of the above item of property are declared as settled between the parties and the petitioners are directed to deposit a sum of Rs. 40 lakhs as undertaken, on or before 30.06.2010, on which event, the possession of the property with the title deeds in respect of Item No.2 mentioned in Ext.P1 shall be released to the petitioners forthwith. Subject to the above, the sale of the above property scheduled to be held on 10.06.2010 will stand adjourned for the time being. It is also made clear that if any default is committed to comply with the conditions as above, no further indulgence will be made under any circumstances and the respondent will be at liberty to proceed with further steps for realisation of the entire amount in a lump sum. The Writ Petition is disposed of. P.R. RAMACHANDRA MENON, JUDGE. lk