IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON MONDAY, THE 24TH AUGUST 2009 / 2ND BHADRA 1931 WP(C).No. 20815 of 2009(V) -------------------------- PETITIONER(S): --------------- PREETHA, D/O.VALSALA, PRATHEEP BHAVAN, AIKKARAKONAM, VALAKKODU PO PUNALUR. BY ADVS. SRI.MANOJ RAMASWAMY SRI. MERIL MUTHU P. JOHN RESPONDENT(S): --------------- 1. THE AUTHORIZED OFFICER, INDIAN BANK RECOVERY/SARFAESI CELL, ZONAL OFFICE, ERNAKULAM. 2. THE BRANCH MANAGER, KOTTARAKKARA BRANCH, (EARLIER POOVATTOOR BRANCH), INDIAN BANK, KOTTARAKKARA. 3. THE SUB REGISTRAR, OFFICE OF THE SUB REGISTRAR ENADIMANGALAM P.O., ENADIMANGALAM, ADOOR. 4. THE VILLAGE OFFICER, ENADIMANGALAM VILLAGE OFFICE, ENADIMANGALAM, ADOOR. 5. D.SALINAN, SASEENDRA VILASAM, ELAMANOOR P.O., ENADIMANGALAM, ADOOR. 6. JACOB VARGHESE KAKKAADU VADAKKETHIL VEETTIL, CHERIYANADU PO, CHENGANOOR. R1 BY ADV. SRI. S.EASWARAN R6 BY ADV. SRI.D.KISHORE THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 24/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Shg// P.R. RAMACHANDRA MENON, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - - W.P. (C) No.20815 OF 2009 - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 24th day of August, 2009 J U D G M E N T The petitioner is challenging the sale conducted by the 1st respondent in favour of the 6th respondent invoking the provisions under the SARFAESI Act in the course of realization of th amounts due from the 5th respondent who was the husband of the petitioner, whose properties have already been attached by the Family Court, Kottarakkara (as early as on 25.11.2005). 2. With regard to the factual matrix, it is to be noted that the petitioner was the wife of the 5th respondent who got married on 15.1.98. It is stated that the matrimonial tie between the petitioner and the 5th respondent got ruptured, pursuant to which the petitioner filed an OP for divorce and for maintenance before the Family Court, Kottarakkara. As per Ext.P1 proceedings of the Family Court, the marriage was dissolved and the petition for divorce was allowed on WPC.No.20815 OF 2009 : 2 : 29.9.2006. As per Ext P2 order dated 25.11.2005 in I.A. No.1601/2005 in OP 970/2005, the property in possession of the 5th respondent was attached and later, the said OP was finally decreed in favour of the petitioner, as per Ext.P3. 3. While so, the petitioner was served with Ext P4 notice dated 18.5.2009, asking her to cause necessary steps to withdraw the attachment and it was only at this point, that she realized that the property involved herein had also been subjected to mortgage by the 5th respondent in connection with a loan transaction with the respondent bank. It is also brought to the notice of this court, the mortgage was created way back in 1991; that a suit was filed by the Bank only in 1994 and the same was decreed in 1996, followed by the execution proceedings which however happened to be dismissed for non prosecution. Thereafter the bank resorted to the steps under the SARFAESI Act, leading to sale of property in favour of the 6th respondent, which is subjected to challenge in the present Writ Petition. WPC.No.20815 OF 2009 : 3 : 4. The 6th respondent, who is the successful bidder, in favour of whom the property was transferred pursuant to the sale effected by the bank, has filed a counter affidavit narrating the sequence of events, with specific reference to the document produced therewith. It is stated that the sale stands confirmed, upon which, necessary 'Sale Certificate' has also been issued, on the basis of which, the 6th respondent is enjoying the property with absolute ownership, exclusive possession and marketable title. The factual position as above is also supported from the part of the bank and the learned counsel appearing for the bank submits that the idea and understanding of the petitioner challenging the proceedings are quite wrong and misconceived. 5. The learned counsel, for the petitioner submits that the property has been sold for 'throw-away price' and that the petitioner never came to know the sale proceedings anytime before. It is contended that the property could never have been put to sale by the bank, in view of the attachment WPC.No.20815 OF 2009 : 4 : ordered by the Family Court on 25.11.2005 and that, no valid title had been passed on to the hands of the 6th respondent. It is also pointed out by the learned counsel that, after filing a suit and obtaining a decree, the respondent bank is not justified in resorting to the steps under the SARFAESI Act. 7. The learned counsel for the 6th respondent submits that the Writ Petition itself is not maintainable, as the petitioner has not chosen to avail the alternative remedy as provided under section 17 of SARFAESI Act. It is also stated that the property having already been subjected to a mortgage, the right of the petitioner, if any, on the basis of the attachment, could only be the residual rights after recognizing the charge of the bank over the properties and nothing more. It is also pointed out that, as on 25.11.2005 ie. the date of attachment, there was no accrued right; which got crystalized only subsequently. The learned counsel also places reliance on the decision rendered by the Apex Court in VANNARAKKAL KALLALATHIL SREEDHARAN VS. WPC.No.20815 OF 2009 : 5 : CHANDRAMAATH BALAKRISHNAN AND ANOTHER IN 1990(3)SCC 291. 8. The factum of the mortgage of the property in question, even much prior to the date of attachment stands rather admitted and as such the rights and interest of the petitioner, if any, can only be subject to the charge of the bank over the properties in question. It is also relevant to note that, by virtue of Rule 9(10) of the Security Interest (Enforcement) Rules, it is clearly stipulated that the 'Sale Certificate' to be issued under sub Rule(6) shall mention whether the purchaser had purchased the immovable property free from any encumbrance or not. By virtue of the issuance of the Sale Certificate, the 6th respondent has acquired valid title ownership and possession over the property in question and the relief that can be prayed for by the petitioner is only with regard to any 'residual amount' left over, to be disbursed as contemplated under sub section 7 of section 13; ie, after settling the liability towards the Bank. WPC.No.20815 OF 2009 : 6 : More so, in view of the non-obstante clause under section 35 of the SARFAESI Act. 9. In the above facts and circumstances, it can't but be held that the petitioner has not made out a case calling for interference by this Court. The Writ Petition is dismissed accordingly; however without prejudice to the right of the petitioner to pursue appropriate steps for realization of the amount due from 5th respondent as provided under section 13 (7) of the SARFAESI Act -if there is any residual extent or by proceeding against other properties, if available. ( P.R. RAMACHANDRA MENON, JUDGE) jma