IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 10TH DECEMBER 2010 / 19TH AGRAHAYANA 1932 OP(C).No. 1020 of 2010(O) ------------------------- CMA.64/2010 of DISTRICT COURT, PALAKKAD OS.134/2010 of ADDL.MUNSIFF COURT, PALAKKAD .................... PETITIONER: ------------------------------ K.SIVADASAN, S/O.BALANARAYANAN EZHUTHASSAN,24,KSC BUILDING, SATHRAMPADY,KANJIKODE,PALAKKAD. BY ADV. SRI.V.V.ASOKAN SMT.RUKHIYABI MOHD KUNHI RESPONDENT: --------------- INDIAN BANK,REPRESENTED BY BRANCH MANAGER,AKATHETHARA,PALAKKAD. ADV.SRI. S EASWARAN FOR R1 THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 10/12/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P JOSEPH, J. ---------------------------------------- O.P(C).No.1020 of 2010 --------------------------------------- Dated this 10th day of December, 2010 JUDGMENT Plaintiff in O.S.No.134 of 2010 of the court of learned Additional Munsiff, Palakkd is the petitioner before me challenging Ext.P7, order as confirmed by the learned District Judge in Ext.P8, judgment. Petitioner sued for a declaration of non liability for the suit property, prohibitory injunction to restrain respondent from initiating coercive steps to recover amount from the suit property and for a mandatory injunction to direct the respondent to return all signed, blank papers to the petitioner. Case is that petitioner had been one of the guarantors to the respondent for a loan availed by the principal debtor according to the petitioner, to the tune of `.4,00,000/- on the security of equitable mortgage of the suit property created by delivery of certified copy of title deeds of petitioner. It is the case of petitioner that on principal debtor paying off the entire amount due, respondent returned the documents to the petitioner thereby discharging equitable mortgage over the property. While so, petitioner received Ext.P1, notice threatening legal action in case the amount allegedly due to the respondent is not paid. O.P(C).No.1020 of 2010 : 2 : That notice was replied by Ext.P2. Apprehending action petitioner filed the suit as above stated and I.A.No.390 of 2010 for an order of temporary injunction to restrain respondent from taking any action against the suit property “in the guise of enforcing the mortgage” till the disposal of the suit. That application was opposed by respondent contending that liability of principal debtor is continuing and hence that of the guarantors including the petitioner still existed, principal debtor availed a loan of `.11,25,000/- for which petitioner was one of the guarantors and as security for repayment of the said amount petitioner created equitable mortgage over the suit property. It is also the contention of respondent that the manager of the branch concerned in collusion with petitioner and the principal debtor returned the documents. According to the respondent, it is entitled to initiate action for realisation of the amount due by proceeding against the property as well. Respondent also challenged jurisdiction of the civil court to entertain the suit. Learned Munsiff found that remedy of petitioner is to prove redemption of mortgage as claimed by him before the Debt Recovery Tribunal, Ernakulam (for short, “the DRT”) before which respondent has initiated action by filing O.A.No.277 of O.P(C).No.1020 of 2010 : 3 : 2010. Learned Munsiff also observed that jurisdiction of the civil court is ousted. The application for injunction was dismissed. Petitioner challenged that order in appeal. Learned District Judge prima facie found that liability of petitioner still subsisted and confirmed dismissal of I.A.No.390 of 2010. Hence this original petition. Learned counsel for petitioner contends that the very fact that petitioner is admittedly in custody of the documents which were handed over to the respondent for creation of equitable mortgage itself indicated that the mortgage was discharged. In that view of the matter court below was not correct in refusing injunction. Appellate court has decided the caseon merit at the interlocutory stage and almost non suited the petition. Respondent contended that remedy of petitioner is only to defend O.A.No.277 of 2010 pending in the DRT where it is open to the petitioner to raise all his contention. 2. It is seen from Ext.P8, judgment that learned District Judge has gone into the merit of the case and decided question of liability of petitioner. I am persuaded to think, learned District Judge need not have gone to that extent at this stage. Hence that finding of learned District Judge has to be set aside and I do so. O.P(C).No.1020 of 2010 : 4 : 3. Then the next question is whether petitioner is entitled to get injunction as prayed for. Respondent is entitled to initiate legal action for the amount it claims to be due to it from the principal debtor and consequently, petitioner as a guarantor. There can be no injunction against institution or perusing any proceeding in a court subordinate to that from which injunction is sought. The DRT is not a forum which is subordinate to the court of Munsiff. Even otherwise respondent is entitled to initiate legal action and the proper course open to the petitioner is to answer such action. Learned Munsiff has taken that view which I do not find reason to disagree with. Question whether petitioner is still liable to the respondent is a matter which is now pending consideration before the DRT in O.A.No.277 of 2010 where is it open to the petitioner to raise all his contention as are available to him. But, I do not find reason to interfere with the order of learned Munsiff refusing to grant injunction. Resultantly with the above observations this petition s dismissed. (THOMAS P JOSEPH, JUDGE) Sbna/-