IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC MONDAY, THE 6TH DECEMBER 2010 / 15TH AGRAHAYANA 1932 WP(C).No. 19111 of 2008(A) -------------------------------------- PETITIONER(S): ---------------------- RAJEEV.G., DEPUTY SECRETARY, GENERAL ADMINISTRATION DEPARTMENT, SECRETARIAT, (ON DUTY AS ADMINISTRATION OFFICER, EMPLOYMENT AND TRAINING DIRECTORATE, THYCAUD, THIRUVANANTHAPURAM), RESIDING AT T.C.15/1705, NEDIAVILAKOM, THYCAUD, TVM. BY ADV. SRI.M.SREEKUMAR RESPONDENT(S): ------------------------- 1. STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY, SECRETARIAT, THIRUVANANTHAPURAM. 2. PRINCIPAL SECRETARY TO GOVERNMENT, GENERAL ADMINISTRATION (ACCOUNTS) DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. * ADDL.R3 IMPLEADED * ADDL.R3 : THE AREA MANAGER, LIC HOUSING FINANCE LTD, 2ND FLOOR, LEELA TOWERS, KESAVADASAPURAM, PATTOM.P.O., THIRUVANANTHAPURAM-4. *IS IMPLEADED AS ADDL.R3 AS PER ORDER IN IA. 8467/08, DATED 08/7/2008. R1 & R2 BY GOVERNMENT PLEADER SRI. MOHAMMAD FAZEEL R3 BY ADV. SRI.R.S.KALKURA THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 06/12/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sts WP(C) NO. 19111/2008 APPENDIX PETITIONER'S EXHIBITS: P1 COPY OF THE ORDER G.O.(MS) NO. 319/91/GAD DATED 1/11/1991. P2 COPY OF THE MORTGAGE DEED DATED 6/11/91 EXECUTED BY PETITIONER AND HIS WIFE IN FAVOUR OF THE GOVT. P3 COPY OF THE ORDER G.O.(P) NO. 436/91/FIN DATED 31/7/1991. P4 COPY OF THE ORDER G.O.(MS) NO. 109/92/GAD DATED 27/2/92. P5 COPY OF THE AGREEMENT DATED 28/2/92 BETWEEN GOVERNMENT, PETITIONER AND LIC HOUSING FINANCE LTD. P6 COPY OF THE ORDER G.O.(MS) NO.500/92/GAD DATED 30/11/92. P7 COPY OF THE ORDER G.O.(MS) NO. 236/2001/GAD DATED 2/7/01. P8 COPY OF THE ORDER NO.11397/AC.E3/05/GAD DATED 1/3/2005. P9 COPY OF THE CHELAN DATED 6/2/2008 FOR PAYMENT. P10 COPY OF THE LETTER NO.LA(CELL.HBA)V/GA 39999/601 DATED 28/2/2008. P11 COPY OF THE LETTER DATED 31/3/2008 FROM THE LIC HOUSING FINANCE LTD.FILE NO.513117. P12 COPY OF THE REPRESENTATION FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT DATED 16/4/08. P13 COPY OF THE LETTER NO.1907482/ 10512/ 513117 DATED 24/4/08. P14 COPY OF THE LETTER ISSUED FROM LIC HOUSING FINANCE LTD TO THE ACCOUNTS OFFICER DATED 21/4/08. P15 COPY OF THE REPRESENTATION FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT DATED 26/4/08. P16 COPY OF THE REPRESENTATION FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT DATED 20/5/08. P17 COPY OF THE ORDER NO.18034/AC.EI/08/GAD DATED 28/5/08. P18 COPY OF THE APPLICATION SUBMITTED BY THE WIFE OF PETITIONER UNDER RTI ACT DATED 28/2/09. P19 COPY OF THE LETTER NO.16177/INFORMATION.2/2009/FIN DATED 6/3/09. P20 COPY OF THE APPEAL FILED BY THE WIFE OF PETITIONER BEFORE THE APPELLATE AUTHORITY DATED 17/3/2009. sts WP(C) NO. 19111/2008 P21 COPY OF THE ORDER NO.22649/INFORMATION.2/2009/FIN DATED 8/4/09. P22 COPY OF THE LETTER NO.54587/AC.EI/08/GAD DATED 22/7/08. P23 COPY OF THE LETTER NO.84931/INFOR.2/09/FIN DATED 24/12/2009. P24 COPY OF THE RELEASE DEED DATED 19/1/07. RESPONDENT'S EXHIBITS: R2(A) COPY OF G.O(P) NO.1610/99/FIN DATED 22/7/1999. R2(B) COPY OF THE LETTER DATED21/8/2008 OF THE LIC HOUSING FINANCE LTD. /TRUE COPY/ P.A.TO.JUDGE sts ANTONY DOMINIC, J. ------------------------------------------- WP (C) No. 19111 of 2008 -------------------------------------------- Dated this the 6th day of December, 2010 J U D G M E N T ------------------------- The petitioner is now working as a Deputy Secretary in the General Administration Department of the Government of Kerala. By Ext. P1, he availed of a house building loan of Rs.64,500/-. Ext.P2 is the mortgage deed that was executed in favour of the Government of Kerala. Ext.P3 is a Government Order that permitted the Government employees to avail additional loans from financial institutions subject to the limits and other conditions specified in this order. 2. The petitioner applied for the benefit of Ext.P3 and accordingly Ext.P4 order was issued to the petitioner permitting him to avail of an additional loan of Rs.1,00,000/- from the 3rd respondent. Ext. P3 provided that in case such additional loans are availed of, a tripartite agreement should be executed, which inter alia WP (C) No. 19111 of 2008 2 also provided that first charge of the property mortgaged will be that of the Government. Accordingly Ext.P5 tripartite agreement was executed and the petitioner availed of the additional loan. 3. Subsequently, the petitioner wanted to avail of a further loan from the 3rd respondent. For that purpose, in order to create security in favour of the 3rd respondent the petitioner wanted to get the mortgaged created in favour of the first respondent released. For that purpose the petitioner remitted the entire dues of the first respondent which is acknowledged as per Exts.P9 and P10 and is not a matter of dispute. Thereafter the petitioner represented to the first respondent to release the title deeds of the property mortgaged and finally he was issued Ext.P17 declining his request on the ground that since the additional loan availed of by him from the 3rd respondent was remaining outstanding, the Government was not in a WP (C) No. 19111 of 2008 3 position to direct release of the title deed to him. It is thereupon that this writ petition has been filed. 4. Stand taken by the respondents is that as per R2(a) Government Order, the maximum loan that a Government employee can avail of is Rs.10 lakhs. It is stated that, for this reason, since the liability due to the 3rdrespondent is still remaining outstanding, the respondents are not in a position to comply with the petitioner's request. 5. In my view, petitioner is entitled to succeed. As already seen, initially the petitioner had mortgaged the property and availed of a house building loan from the first respondent. Subsequently when the additional loan was availed of, the property was mortgaged to the 3rd respondent with charge in favour of the 1st respondent. Now in order to avail of further loan from the 3rd respondent, the petitioner has to mortgage the property WP (C) No. 19111 of 2008 4 to the 3rd respondent and for that purpose the petitioner discharged the liability due to the first respondent and sought release of title deed of the property mortgaged by him. Once liability is discharged, it is the obligation of the first respondent to execute the release deed and neither Ext.P3 nor Ext.R2(a) can stand in their way. This is for the reason that these two Government orders have relevance only if there is any liability outstanding due to the first respondent and once the liabilities are discharged, these orders have no relevance and cannot be relied on to decline the request to execute release deed of the property mortgaged. Since, the petitioner has admittedly discharged the liability due to the first respondent, the first respondent is liable to execute release deed in favour of the petitioner. Therefore, this writ petition will stand disposed of quashing Ext.P17 and directing respondents 1 and 2 to WP (C) No. 19111 of 2008 5 execute release deed as sought for by the petitioner releasing property mortgaged by the petitioner from Ext.P2 mortgage. This shall be done as expeditiously as possible at any rate, within 8 weeks form the date of receipt of a copy of this judgement, along with the copy of this writ petition. ANTONY DOMINIC, JUDGE. rkc