IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN THURSDAY, THE 3RD JULY 2008 / 12TH ASHADHA 1930 WP(C).No. 8484 of 2008(I) ------------------------- PETITIONER: ------------ 1. K.O.DEVASSY, KANALIKKAL, KULAYATTIKARA KANJIRAMATTOM P.O., PIN-682315. 2. K.O.VARGHESE ALIAS JOY AGED ABOUT 45 YEARS, KANALIKKAL, KULAYATTIKARA KANJIRAMATTOM P.O., REPRESENTED BY HIS POWER OF ATTORNEY HOLDER K.O.DEVASSY, KANALIKKAL KULAYATTIKKARA, KANJIRAMATTOM P.O., PIN 682315. 3. K.O.THOMAS @ TOMY, KANALIKKAL KULAYATTIKKARA, KANJIRAMATTOM P.O., PIN 682315. 4. K.O.MARY, KANALIKKAL KULAYATTIKKARA, KANJIRAMATTOM P.O., PIN 682315. 5. LILLY, KANALIKKAL, KULAYATTIKKARA KANJIRAMATTOM P.O., PIN 682315. 6. ALPHONSA, KANALIKKAL, KULAYATTIKKARA KANJIRAMATTOM P.O., PIN 682315. BY ADV. SRI.P.B.SAHASRANAMAN RESPONDENTS: ------------- 1. CENTRAL BANK OF INDIA, REPRESENTED BY ITS REGIONAL MANAGER, REGIONAL OFFICE 1ST FLOOR "METRO PALACE", OPPOSITE ERNAKULAM TOWN RAILWAY STATION, KOCHI-68201. 2. THE DEBT RECOVERY TRIBUNAL KERALA STATE HOUSING BOARD BUILDING, 5TH FLOOR ERNAKULAM. BY ADV. SRI.DEVAN RAMACHANDRAN(B/O) SRI. V.V. SIDHARTHAN SRI. P. PARAMESWARAN NAIR ASST. SOL.GEN. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 03/07/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 8484 of 2008 EXT.P1: COPY OF DEATH CERTIFICATE ISSUED BY THE MARADU GRAMA PANCHAYAT DTD 20.7.07. EXT.P2: COPY OF NOTICE ISSUED BY R2 DTD 27.9.07. EXT.P3: COPY OF REPLY STATEMENT FILED BY THE DEFENDANTS 8 TO 11 JOINTLY IN T.A. NO.1799 OF 1998, DTD 22.12.1999. EXT.P4: COPY OF POSSESSION NOTICE, ISSUED BY R1 DTD 9.1.2008. RESPONDENT'S EXHIBITS EXT.R1(a): COPY OF LETTER GRARANTEE EXECUTED BY LATE K.A. OUSEPH AND OTHER GUARANTORS IN FAVOUR OF CENTRAL BANK OF INDIA. EXT.R1(b): COPY OF THE CERTIFIED TURE EXTRACT OF PAGE NO.48 OF THE EQUITABLE MORTGAGE REGISTER KEPT BY THE COCHIN BRANCH OF THE R1. EXT.R1(c): COPY OF THE INLAND LETTER DTD 6.12.96 SENT BY LATE K.A. OUSEPH TO THE MANAGER, CENTRAL BANK OF INDIA, COCHIN BRANCH. EXT.R1(d): COPY OF NOTICE UNDER SECTION 13(2) OF THE SARFAESI ACT SENT BY R1 TO K.A. OUSEPH. EXT.R1(e): COPY OF THE POSTAL ACKNOWLEDGEMENT CARD EVIDENCING THE ACCEPTANCE OF EXT.R1(d) BY K.A. OUSEPH. EXT.R1(f): COPY OF STATEMENT OF OBJECTION DT. 6.3.2007 SENT BY K.A. OUSEPH TO R1. EXT.R1(g): COPY OF REPLY DT. 15.3.2007 SENT BY R1 TO K.A. OUSEPH. EXT.R1(h): COPY OF THE POSTAL A/D/ EVIDENCING THE ACCEPTANCE OF R1(g)BY K.A. OUSEPH. EXT.R1(i): COPY OF REPLY NOTICE DT. 16.7.97 SENT BY ADVOCATE M.A. JOSEPH TO ADVOCTE V.V. SIDHARTHAN. EXT.R1(j): COPY OF S.A. 19/2008 FILED BY P.V. THOMAS BEFORE THE DEBT RECOVERY TRIBUNAL, ERNAKULAM. TRUE COPY PA TO JUDGE. S. SIRI JAGAN, J. ------------------------------------ W.P.(C)No.8484 OF 2008 ---------------------------------------- Dated this the 3rd day of July, 2008 JUDGMENT The petitioners are legal heirs of late Sri. K.A. Ouseph. The petitioners' grievance in this writ petition is that although the property belonging to them devolved by succession on the death of Sri. K.A. Ouseph had not been mortgaged either by Sri. K.A. Ouseph or any of the petitioners to the 1st respondent, the 1st respondent is proceeding under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act against the property. Admittedly, in respect of the same subject matter, the bank has already filed an O.A. before the Debt Recovery Tribunal under the Recovery of Debts due to Banks and Financial Institutions Act. Therefore, I am of opinion that the petitioners' remedy lies in filing an appropriate petition in the O.A., in which only the question as to whether there is any fraud committed can be decided. Therefore, without prejudice to the right of the petitioners to move the DRT in the O.A. pending before it, this W.P.(c)No.8484/08 2 writ petition is closed. However, to enable the petitioners to move the DRT appropriately, I direct that the stay granted by this Court shall continue to be in operation for a period of ten days. S. SIRI JAGAN, JUDGE Acd