IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM THURSDAY, THE 6TH JANUARY 2011 / 16TH POUSHA 1932 WP(C).No. 36314 of 2010(L) --------------------------------- PETITIONER(S): ------------------- M.C.PRABHA, D/O.BHASKARAN, AGED 34 YEARS, SANGEETHA HOUSE, PONNIAM WEST P.O., KANNUR DISTRICT BY ADV. SRI.CIBI THOMAS RESPONDENT(S): -------------------- 1. ANDHRA BANK,REP.BY ITS MANAGER, MALABAR TOWERS, JOHN MILL ROAD, KANNUR-670002 2. VALIYAPURAYIL RAMESHAN, S/O.SANKARAN, VALIYAPURAYIL HOUSE, WEST PONNIAM P.O.,KANNUR DISTRICT PIN-670002 R1 BY ADV. SRI.ABRAHAM MATHEW (VETTOOR) THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 06/01/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: svs C.K.ABDUL REHIM, J. ------------------------------------------- W.P.(C).No.36314 of 2010 ------------------------------------------- Dated this the 6th day of January, 2011 J U D G M E N T ---------------------- Petitioner claims to be the owner of a property having an extent of 35 ¾ cents comprised in R.S.No.8/1(A) of Thiruvangad Village in Thalassery Taluk. According to the petitioner, she had obtained title over the property by virtue of settlement deed No.933/2003. It is admitted that the petitioner had assigned 20.49 cents out of the said property in favour of the 2nd respondent as per Deed No.11114/2003. It is further stated that the 2nd respondent again assigned the said property, back to the petitioner, by virtue of assignment Deed No.1681/2005. Copies of the above said deeds of assignment are produced as Ext.P1 to P3. Grievance of the petitioner is that the 1st respondent Bank had initiated proceedings under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI Act) against 20.49 cents of property which was assigned by the petitioner in favour of the 2nd respondent by virtue of Ext.P2 deed, consequent to default committed by the 2nd respondent in repayment of loan availed by him from the 1st respondent Bank. The petitioner is challenging the sale proclamation published by the Bank as per Ext.P4. W.P.(C).36314/10 -2- 2. It is noticed that a mortgage was created by the 2nd respondent by deposit of Ext.P2 deed. As far as 1st respondent is concerned, there is a concluded mortgage created on the strength of valid title. Presumably Ext.P3 deed of assignment was created after the mortgaging of the property in favour of the 1st respondent Bank. Therefore it could not be held that by virtue of Ext.P3 deed the petitioner has got any right to challenge steps initiated by the Bank under the provisions of the SARFAESI Act. Further, it is noticed that the petitioner, eventhough claims to have been aggrieved by steps initiated by the Bank, has not chosen to avail any of the statutory remedies as provided under the SARFAESI Act. Therefore I am of the view that the writ petition is devoid of merits. 3. However, it is noticed that, as a gesture of indulgence, when the writ petition came up for consideration this court has granted an interim order staying confirmation of sale if any takes place on the basis of Ext.P6, subject to condition of the petitioner remitting a sum of Rs.1 lakh within three weeks from 6.12.2010. But the petitioner failed to comply with the condition. The petitioner had filed an application seeking enlargement of time by a period of six months for complying with the condition. Considering the above narrated facts and circumstances I am not W.P.(C).36314/10 -3- inclined to entertain such an application. 4. However, learned counsel for petitioner submitted that the petitioner is making arrangements for procuring funds in order to settle the liability and to save the property from being sold. It is always left open to the petitioner to approach the Bank with any concrete offer in this regard and it is for the Bank to take appropriate decision thereon. 5. Under the above circumstances, the writ petition is dismissed reserving liberty to the petitioner to approach the 1st respondent Bank seeking settlement of the account. C.K.ABDUL REHIM, JUDGE. okb