IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM THURSDAY, THE 23RD SEPTEMBER 2010 / 1ST ASWINA 1932 WP(C).No. 23836 of 2010(D) -------------------------- PETITIONER: ------------------- ABUDL RAHIMAN.C.A., S/O.ALI, CHERUKUNAN HOUSE, MUNDARI, KALPETTA. BY ADV. SRI.P.V.JYOTHI PRASAD RESPONDENTS: ---------------------- 1. STATE BANK OF TRAVANCORE, REPRESENTED BY CHIEF MANAGER, KALPETTA, PIN-673 121. 2. GREEN AGRO TRADE LINKS (P) LTD., MAIN ROAD, KALPETTA, PIN- 673 121. 3. SUNNY MATHEW, THAMPUNAYIL HOUSE, MUNDARI, KALPETTA, PIN- 673 121. 4. ELIZABETH SUNNY, -DO-. R1 BY ADVS. SRI.T.SETHUMADHAVAN SRI.PUSHPARAJAN KODOTH SRI.K.JAYESH MOHANKUMAR R2 TO 4 BY SRI..ABU BAKER KUNJU SMT.REHUMATHINISA BALACHANDRAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 23/09/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: VK C.K.ABDUL REHIM, J ------------------------------------ W.P(C) No.23836 of 2010-D ------------------------------------ Dated this the 23rd day of September, 2010. J U D G M E N T Petitioner is challenging Ext.P3 notice issued under Section 13(4) of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI Act), by the 1st respondent. The property which is scheduled in Ext.P3 notice is 9 cents of land comprised in survey No.181/1 in R.S.No.173/62 of Kalpetta Village. According to the petitioner, the said property was purchased by him from the 3rd respondent without knowing that the property in question was mortgaged in favour of the 1st respondent Bank. It is revealed that respondents 3 and 4 had availed business loan for the purpose of the 2nd respondent Company by pledging the above said property along with other properties. Consequent to default committed by the 2nd respondent, the proceedings under the SARFAESI Act has now been initiated. W.P(C) No.23836 of 2010-D 2 2. The case of the petitioner is that the 1st respondent Bank is not taking any effective steps against properties belonging to the respondents 2 to 4 due to extraneous reasons and the proceedings now initiated against the property purchased by the petitioner alone, is arbitrary and unreasonable. If the 1st respondent proceed against with sale of all the items of the properties mortgaged, the entire arrears will be recovered from respondents 2 to 4, is the contention. 3. In a statement filed by the 1st respondent, it is mentioned that the loan in question was availed as early as in the year 2004 by mortgaging four items of property, including the property claimed to have been purchased by the petitioner. It is evident that the petitioner had purchased the property only in the year 2009 by virtue of Ext.P1 sale deed. The original title deed of the property in question is in the custody of the Bank and the petitioner had not taken any care to verify the original title deed. It is contended that the petitioner is not a party to the loan W.P(C) No.23836 of 2010-D 3 transaction and that he cannot insist on the Bank to sell other items of properties simultaneously. However, it is mentioned that the Bank has initiated proceedings against all the four items of the properties. It is mentioned that the Bank has also approached the Debt Recovery Tribunal by filing O.A.No.217 of 2009. 4. Learned counsel for the petitioner had brought to my notice that with respect to another item, which was mortgaged, there was a sale effected by the 4th respondent in favour of one Sri.N.A.Sonni. When the said property was proceeded against, the purchaser had approached this Court by filing W.P(C) No.12251 of 2010. A copy of the judgment in that case dated 31.5.2010 was made available for my perusal. It is noticed that the counsel appearing for the Bank made a submission in that case, to the effect that all the items of the properties are being proceeded against and that no arbitrariness or discrimination will be shown with respect to any of the items of the properties. Referring to the averments contained in the statement filed by the W.P(C) No.23836 of 2010-D 4 Bank that two items of properties offered as collateral security are agricultural properties, learned counsel appearing for the petitioner strongly refuted correctness of such a statement. According to him the respondents 3 and 4 are conducting a home stay (resort) in the properties mortgaged and if coercive steps are initiated against the said properties, the respondents 2 to 4 will definitely settle the arrears. Under such circumstances, he makes a limited prayer for issuing direction to the 1st respondent Bank to conduct sale of all the four items of properties, simultaneously. 5. Learned counsel for the 1st respondent Bank opposed the submission in this regard contending that the petitioner has absolutely no locus standi to suggest any course regarding the recovery steps, which is being pursued at the instance of the Bank. The petitioner is not a bonafide purchaser and he could not dictate terms on the first respondent regarding steps, is the contention. 6. Considering the facts and circumstances and W.P(C) No.23836 of 2010-D 5 contentions on both sides, I am of the opinion that the petitioner is not entitled to any relief in this writ petition. Admittedly the mortgage was created before the alleged purchase of the property by the petitioner. He is not entitled to interdict in any manner with the proceedings now being pursued by the 1st respondent Bank for realising amounts due under the loan transaction. It is for the Bank to decide on the course of action to be adopted for realisation of the amounts due. 7. However, considering contentions raised by the petitioner regarding sale of other items of property, the Bank may take note of such contentions and consider the request of the petitioner for having the sale proclaimed with respect to all the four items of the properties together. Under the above circumstances, the writ petition is devoid of any merit and the same is hereby dismissed, subject to the observations contained above. C.K.ABDUL REHIM JUDGE