IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON FRIDAY, THE 20TH AUGUST 2010 / 29TH SRAVANA 1932 WP(C).No. 25277 of 2010(H) -------------------------- PETITIONER: --------------- THOMAS MATHEW, S/O.ABRAHAM MATHAI, AGED 55 YEARS, PLATHOTTATHIL HOUSE, (JNJ HOUSE), UTHIMOOD P.O., RANNI, PATHANAMTHITTA. BY ADV. MR. V.ANIL (K/1480/98) RESPONDENTS: --------------- 1. THE BRANCH MANAGER, STATE BANK OF INDIA, PATHANAMTHITTA. 2. THE AUTHORISED OFFICER, STATE BANK OF INDIA, PATHANAMTHITTA BRANCH, PATHANAMTHITTA. ADV. MR. K.K.CHANDRAN PILLAI MR. A.S.SAJUSH PAUL THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 20/08/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.R. RAMACHANDRA MENON J. ~~~~~~~~~~~~~~~~~~~~~~~ W.P. (C) No. 25277 of 2010 ~~~~~~~~~~~~~~~~~~~~~~~ Dated, this the 20th day of August, 2010 JUDGMENT The petitioner availed a Housing loan of Rs. 12 lakhs from the respondent Bank on 10.7.2002; a cash credit facility of Rs. 3 lakhs in connection with his business in rubber, which was subsequently enhanced to Rs. 7 lakhs and then to Rs. 20 lakhs and a term loan of Rs. 5 lakhs in connection with the business in hollow-bricks, creating security interest over 3 different items of property belonging to the petitioner as well as the guarantors, who are the brothers of the petitioner. Since the petitioner did not choose to honour the commitment in satisfaction of the liability, the Bank filed O.A. 23 of 2007, before the Debt Recovery Tribunal, Ernakulam, for realizing the outstanding liability of Rs. 48 lakhs. On conclusion of the trial, the O.A. was allowed and a decree was passed in favour of the Bank. 2. Based on the amount covered by the decree, the Bank proceeded with further steps under the SARFAESI Act and issued several notices to the petitioner, which however did not evoke any response. In the said circumstances, the Bank took over the physical possession of the three different items of the properties; when the petitioner and his brother approached this Court by filing W.P. (C). W.P. (C) No. 25277 of 2010 : 2 : 24569 of 2008, which was dismissed on 3.4.2009, as devoid of merit. During the course of the Writ Appeal No. 1273 of 2009, preferred therefrom, it was contended by the petitioner/appellant that the marriage of the daughter of the petitioner herein was to be solemnized in the meanwhile. On the basis of the undertaking before the Division Bench that, they would settle the liability, the possession of the building was sought to be returned provisionally, for conducting marriage and also for effecting 'private sale' assuring that, the entire amount due will be cleared within no time. In spite of the undertaking given as above, the payment was not effected and on bringing the factual position to the notice of the Division Bench, the possession provisionally given to the petitioner was cancelled; the property was ordered to be returned and the Writ Appeal was dismissed. 3. In the meanwhile, one of the three different items of the properties, having an extent of 43.50 Ars. was requested by the petitioner, to be sold by way of 'private sale', which was considered favorably and the Bank permitted 'private sale', making it clear that, on payment of Rs. 19.3 lakhs, the title deed in respect of the said property would be returned to the petitioner. Pursuant to this, the private sale was effected in respect of the above property and the sale proceeds were deposited in the Bank, which was given credit to the existing liability. W.P. (C) No. 25277 of 2010 : 3 : 4. In the course of events, it was also brought to light that the petitioner was very much indebted to the State in respect of sales tax arrears. In pursuance of further proceedings, the revenue took steps to sell 25 cents of land (which is involved in the present case), for realization of the sales tax arrears and earmarked '10 cents' in the front portion (out of the total 25 cents) during the pendency of Writ Appeal. In the said circumstances, the Bank was constrained to approach this Court, by filing W.P.(C) 21046 of 2009, projecting the grievance as to the course pursued by the revenue, when the proceedings were intercepted by way of interim order. Though, it was undertaken by the petitioner herein that the entire sales tax arrears would be cleared by him, the petitioner did not prove the words by his deeds and the liability remained as it was. In the said circumstances, there was no other alternative for the Bank, than to satisfy the said liability as well, which was nearly 2.5 lakhs; whereby the rights and interests of the Bank over the said property were more crystallized, as clearly observed by the Division Bench, which was a common verdict in the above mentioned two cases and also in respect of W.P.(C) No.23307 of 2009, which was filed by the person who purchased 43.50 cents of land in the private sale, being aggrieved of the delay in effecting the mutation. Taking note of the grievance, necessary directions were given in the common verdict, in respect of the issue of W.P. (C) No. 25277 of 2010 : 4 : mutation as well. 5. In the above circumstances, the Bank proceeded with further steps for effecting the sale of the property, in public auction and at this juncture, the petitioner again approached this Court to get back the possession of the property. Since there was absolutely no merit in the said case, the said Writ Petition was dismissed by this Court on 12.3.2010, enabling the Bank to proceed with further steps. At this point of time, the petitioner turned with a 'compromise proposal' stating that, the petitioner was ready to pay a total sum of Rs. 32 lakhs against the total due of Rs. 54.62 lakhs. Taking note of the turn of events, the Bank took a decision to accept the same and the position was let known to the petitioner. This was pursuant to acceptance of the stipulation made by the Bank that the amount to be procured by the petitioner, pursuant to the proposed private sale was to be deposited before the Bank in a separate account and accordingly, the prospective purchaser had deposited a sum of Rs. 30 lakhs in a separate account as aforesaid. 6. Subsequently, the prospective purchaser came to know that, there was some other attachment as well over the property, which, though was not binding upon the Bank in view of the security interest created; the prospective purchaser insisted the petitioner to have cleared the said liability as well; which however was not acceded to by W.P. (C) No. 25277 of 2010 : 5 : the petitioner and no arrangement was made in this regard. Met with the situation, the purchaser withdraw from the proposal and made a request to the Bank to retransfer the sum of Rs.30 lakhs deposited by him, to his 'NRI account' maintained with the Canara Bank and in turn, the amount was transferred. This being the position, there is no amount in the account, so as to give effect to the said proposal, submits Mr. Chandran Pillai, the learned senior counsel for the Bank. 7. In the meanwhile, the petitioner had approached the Bank with a proposal, stating that Rs. 25 lakhs will be paid for causing the property to be sold in 'private sale' and filed a representation in this regard. Considering the facts and circumstances, the Bank instructed the petitioner to deposit 5 % of the aforesaid amount, which was also not complied with by the petitioner and it was thereafter, that the amount retained in the account of the prospective purchaser was re- transferred on 11.8.2010. The learned senior counsel submits that, in spite of the turn of events as above, the Bank is still ready to accept the proposal made by the petitioner initially, for a total of Rs. 32 lakhs and the property can be released to the petitioner, on condition that, the petitioner satisfies a sum of Rs. 29 lakhs forthwith and the remaining Rs. 3 lakhs be deposited within three months, simultaneously furnishing security as specified and let known. It is without any regard to the sequence of events as above, that the petitioner has again approached W.P. (C) No. 25277 of 2010 : 6 : this Court, by filing the present Writ Petition, raising false and frivolous contentions, which is not liable to be entertained, submits the learned senior counsel. 7. After hearing both the sides, this Court finds that, there is absolutely no reason to call for interference in this Writ Petition. The prayer in the Writ Petition is to release the property concerned by accepting Rs. 25 lakhs already deposited with the Bank by the intending purchaser, though the fact remains that the amount deposited by the intending purchaser has been re-transferred to his NRI account, as requested, on 11.8.2010. It is borne out by the records that the petitioner had filed different Writ Petitions/Writ Appeals and other proceedings at different points of time, whereby the proceedings initiated by the respondent Bank were not caused to be taken to a logical conclusion and to some extent he has succeeded, which cannot permitted to be perpetuated any further Time of this Court is also precious and there cannot be any more abuse of the process of Court by the petitioner. In the above circumstances, the Writ Petition is dismissed with a cost of Rs. 10,000/- (Rupees Ten thousand only). P. R. RAMACHANDRA MENON, JUDGE kmd