IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM WEDNESDAY, THE 16TH SEPTEMBER 2009 / 25TH BHADRA 1931 WP(C).No. 22860 of 2009(B) -------------------------- PETITIONER(S): --------------- 1. THILOTHAMMA K., W/O.KSHEMACHANDRAN, RESIDING AT 'MITHILA', TC 46/314(2), PARITHIKUZHY, POONTHURA, THIRUVANANTHAPURAM. 2. KSHEMACHANDRAN, S/O.KRISHNANKUTTY, RESIDING AT 'MITHILA', TC 46/314(2), PARITHIKUZHY, POONTHURA, THIRUVANANTHAPURAM. BY ADV. SRI.N.N.SUGUNAPALAN, SENIOR ADVOCATE SMT.NITA.N.S. SRI.S.SUJIN RESPONDENT(S): --------------- 1. SREENIVASAN, S/O.SUNDARAN, WORKING AS ASSISTANT OFFICER(AOA), GROUND SUPPORT DEPARTMENT, AIR INDIA, TRIVANDRUM, RESIDING AT VANIYANVILA HOUSE, VETTUVENI, MARTHANDAM P.O., KANYAKUMARI DISTRICT, TAMIL NADU. 2. THE AUTHORISED OFFICER, HDFC LTD., HDFC HOUSE, VAZHUTHACAUD, THIRUVANANTHAPURAM-10. 3. T.JAYASREE, D/O.THANKAN, AYTHIVILAI, NATTALAM P.O., VILAVANKODE, KANYAKUMARI DISTRICT, TAMIL NADU. 4. THE BRANCH MANAGER, THE SOUTH INDIAN BANK LTD., MARTHANDAM BRANCH, MARTHANDAM P.O., KANYAKUMARI DISTRICT, TAMIL NADU. ADV. SRI.GEORGE VARGHESE,SC, FOR R4 SRI.P.R.MILTON,SC FOR R4 SRI.P.K. CHANDRAN PILLAI,SC, FOR R2 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 16/09/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: C.K.ABDUL REHIM, J. ------------------------------ W.P.(C).No.22860 OF 2009 ------------------------------ Dated this the 16th day of September, 2009 J U D G M E N T ---------------------- 1. The petitioners are the plaintiffs in a suit filed against the 1st respondent before the Sub Court, Thiruvananthapuram, as O.S.No:871/07. That Court has ordered attachment against the property of the 1st respondent, as early as on 17.12.2007. It is evident that the property upon which attachment was ordered by the Civil Court was mortgaged by the 1st respondent in favour of the 2nd respondent Bank for securing a loan availed by him. Since repayment in the loan account was defaulted by the 1st respondent, the 2nd respondent took steps under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act 2002 (SARFAESI Act) and the property was sold in public auction to the 3rd respondent on 15.6.2009. The sale was confirmed in favour of the 3rd respondent and the sale deed was already issued, as per Ext.P6. The property was given possession to the 3rd respondent. 2. Complaint of the petitioners is that the 3rd respondent is a relative of the 1st respondent and the sale is conducted in a collusive manner without proper compliance of the procedural W.P.(C).22860/09 2 formalities. According to the petitioners the property is worth fetching value sufficient to wipe off the liability due to the 2nd respondent Bank as well as the liability due to the petitioners in the suit. But the same was auctioned for a paltry sum on the basis of collusion between the 1st respondent and the 3rd respondent. 3. Heard the learned standing counsel for 2nd respondent Bank, who submitted that the entire proceedings with respect to sale is now over and the Bank is retaining an excess amount of Rs.2,94,528/- out of the sale price, after crediting the entire dues. Learned standing counsel for 4th respondent Bank submitted that with respect to the same property the Bank has allowed credit facility to the 3rd respondent and the purchase was made on the basis of loan availed by the 3rd respondent from that Bank. The loan is secured by creation of equitable mortgage of the property in favour of the 4th respondent Bank, is the contention. 4. Having considered the rival contentions of all the parties, and on considering the fact that the sale now stands confirmed and the loan account of the 2nd respondent stand settled, and that there was no intervention during the course of the sale proceedings, the petitioners have no right to intervene raising any challenge against sale proceedings, at this stage. W.P.(C).22860/09 3 However it is noticed that even if the petitioners have got any such rights they have to approach the appropriate forum provided under the SARFAESI Act and not this court in a proceedings under Article 226 of the Constitution of India. Hence the writ petition is devoid of any merit, and it is liable to be dismissed. 4. Under the above circumstances the writ petition is dismissed without prejudice to the rights of the petitioners to challenge the sale proceedings before appropriate forum, if permissible under law. C.K.ABDUL REHIM, JUDGE. okb