IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN THURSDAY, THE 26TH JUNE 2008 / 5TH ASHADHA 1930 WP(C).No. 37382 of 2007(A) ---------------------------------------- PETITIONER: -------------------- DHANASREE V.KUMAR @ DHANASREE VIJAYAKUMAR, W/O.VIJAYA KUMAR,AGED 39 YEARS, SREE VIHAR (VIDHYA NURSERY SCHOOL) NEAR T.V.CENTRE, KAKKANAD P.O., ERNAKULAM – 682030. BY ADV. SRI.K.V.SABU RESPONDENTS: ------------------------- 1. THE MANAGER, ALLAHABAD BANK, M.G.ROAD, ERNAKULAM. 2. THE SENIOR MANAGER, ALLAHABAD BANK, HEAD OFFICE: 2, NETHAJI SUBHAS ROAD, CALCUTTA - 700 001. 3. V.V.THODGE, ASST.GENERAL MANAGER, AUTHORIZED OFFICER OF THE ALLAHABAD BANK, 2, NETHAJI SUBHAS ROAD, CALCUTTA - 700 001. 4. SRI.JIDESH MATHEW, AGED 34, S/O.V.C.MATHEW, VARICKAPLACKIL HOUSE, W & O VILLA, VIKAS NAGAR, KUNDANNUR, MARADU VILLAGE, ERNAKULAM REPRESENTED BY SRI.C.SAJI, S/O.CHACKO, AGED 35,POWER OF ATTORNEY HOLDER, R/AT CHERUVALLIL HOUSE, PULIYANNOOR P.O., PALA, KOTTAYAM DIST-686 575. 5. SECRETARY TO GOVERNMENT OF INDIA, DEPARTMENT OF FINANCE, CENTRAL SECRETARIAT, NEW DELHI – 1. BY ADV. SRI. T.R. RAJAN – R1 SRI.K.THYAGARAJESWARAN BY ADV. SMT.MOLY.E.V., CGC - R5 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 26/06/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss S.SIRI JAGAN, J = = = = = = = = = = = = = = = = W.P.(C).No. 37382 OF 2007 = = = = = = = = = = = = = Dated this the 26th day of June, 2008. J U D G M E N T The petitioner claims to be the owner of certain properties, mortgaged by the 4th respondent for availing of a loan from the 1st respondent, bank. Apparently, the 4th respondent has not paid the amount, as a result of which respondents 1 to 3 have initiated proceedings under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002, for realisation of the amounts due from the 4th respondent to the bank. A notice, Ext.R1(c), has been issued for sale of the security interest. Petitioner wants to avoid the sale by paying off the amounts due so as to save the property, but he needs some time. The sale is fixed to 28.6.2008. The petitioner therefore seeks the following reliefs: i) Issue a writ of mandamus or other appropriate writ or order directing the 3rd respondent to stay the operation of Ext.P3 order. ii) Issue writ of certiorari or direction or order directing the 3rd respondent to call for the records of the loan transaction between the 4th respondent and to set aside the Ext.P3 order. W.P.(C).No. 37382 OF 2007 2 2. The learned counsel appearing for respondents 1 to 3 stoutly opposes the same. According to him, there is no privity of contract between the petitioner and the bank. As per title deeds deposited by the 4th respondent, the 4th respondent is the owner of the property. As such, the writ petition itself is not maintainable, since the bank is not proceeding against the property belonging to the petitioner, nor is the petitioner a guarantor for the loan, is the submission made. 3. The learned counsel for the petitioner submits that the property belongs to him and the sale deed was executed by him in favour of the 4th respondent to enable the 4th respondent to obtain loan and now the petitioner is in an unenviable situation, because the 4th respondent is abroad. However, he is prepared to pay the entire amounts due from the 4th respondent provided, some time is given. 4. After hearing both sides, I feel that a lenient attitude can be taken in the matter, in spite of the objections raised by the respondents 1 to 3. Accordingly this writ petition is disposed of with the following directions: W.P.(C).No. 37382 OF 2007 3 The petitioner shall pay the entire amounts due as per Ext.R1(c), within a period of one month from today. However, in the meanwhile, respondents 1 to 3 can conduct a sale as per Ext.R1(c). However, the sale shall not be confirmed for a period of one month. If the petitioner pays the amount within the said period of one month as directed above, the sale would stand set aside. However, if the petitioner does not makes the payment, respondents would be free to complete the proceedings pursuant to Ext.R1(c), in accordance with law. S.SIRI JAGAN, JUDGE bkn/-