IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN THURSDAY, THE 22ND SEPTEMBER 2011 / 31ST BHADRA 1933 WP(C).No. 22534 of 2011(N) -------------------------------------- PETITIONER: ------------------- MANJU R.KUMAR, AGED 27 YEARS, W/O.AJEESH, PRA-14, PURAVOORKONAM, KARAKULAM P.O, NEDUMANGAD, THIRUVANANTHAPURAM DISTRICT. BY ADVS. SRI.D.S.SREEKUMARAN, SMT.T.S.MAYA (THIYADIL). RESPONDENTS: ------------------------ 1. THE AUTHORISED OFFICER, (CHIEF MANAGER), STATE BANK OF TRAVANCORE, KSEB PATTOM BRANCH, THIRUVANANTHAPURAM, PIN-695 004. 2. THE CHIEF MANAGER, STATE BANK OF INDIA, STATUE JUNCTION BRANCH, THIRUVANANTHAPURAM-695 001. 3. THE CHIEF MANAGER, PUNJAB NATIONAL BANK HOUSING FINANCE LTD., 4TH FLOOR, CAPITOL TOWERS, STATUE JUNCTION, THIRUVANANTHAPURAM, PIN-695 001. 4. NAINA MUHAMMED, AGED 45 YEARS, S/O.N.SHAHUL MOIDEEN, REHMATH, K.P.IV/157-C, PURAVOORKONAM, KARAKULAM P.O., THIRUVANANTHAPURAM DISTRICT, PIN-695 545. W.P.(C).NO.22534/2011-N: 5. NAZEERA MOHAMMED, AGED 40, W/O.NAINA MOHAMMED REHMATH, K.P.IV/157-C, PURAVOORKONAM, KARAKULAM P.O., THIRUVANANTHAPURAM DISTRICT, PIN-695 545. *ADDL. R6. IMPLEADED: 6. THE ADDITIONAL DIRECTOR GENERAL OF POLICE, LAW & ORDER, SOUTH ZONE, THIRUVANANTHAPURAM. *IS IMPLEADED AS ADDL. R6 AS PER ORDER DT. 24/08/11 IN I.A. 14105/11. R1 BY ADV. SRI.P.V.SURENDRANATH, SRI. R.S. KALKURA, R2 BY ADV. SRI.GEORGE THOMAS(MEVADA), S.C, S.B.I R3 BY ADVS.SRI. P. RAMAKRISHNAN, SRI.P.BALAKRISHNAN, SRI.N.SASI, SMT.T.M.BINITHA, SMT.AFSANA ASHRAF. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 22/09/2011,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C).NO.22534/2011-N: APPENDIX PETITIONER'S EXHIBITS:- EXT.P.1: COPY OF THE AGREEMENT BETWEEN THE PETITIONER AND THE R.4. DTD. 26/05/2011. EXT.P.1.A: COPY OF THE SALE DEED NO. 189/2003 OF KARAKULAM SRO DTD. 23/01/2003 CERTIFIEED BY THE R.2. EXT.P.2: COPY OF THE RESIDENTIAL CERTIFICATE ISSUED BY THE KARAKULAM GRAMA PANCHAYATH DTD. 11/08/11. EXT.P.3: COPY OF THE O.C. 149/2011 BEFORE THE SUB COURT, NEDUMANGAD FILED BY THE PETITIONER. EXT.P.4: COPY OF THE ORDER IN I.A. 715/2011 DTD. 22/07/11 OF SUB COURT, NEDUMANGAD. EXT.P.5: COPY OF THE INTIMATION GIVEN TO THE R.2. AND THEIR REPLY. EXT.P.6: COPY OF THE ENCUMBRANCE CERTIFICATE DTD. 09/06/2011 & 01/08/11. EXT.P.7: COPY OF THE JUDGMENT DTD. 06/04/2011 AND THE COPY OF THE PETITION IN W.P.(C).6264/2011. EXT.P.8: COPY OF THE JUDGMENT DTD. 28/02/2011 AND THE COPY OF THE WRIT PETITION W.P.(C).NO.1715/2011. EXT.P.9: COPY OF THE COMPLAINT FILED BY THE PETITIONER BEFORE THE R.1. DTD. 12/08/2011. EXT.P.10: COPY OF THE COMPLAINT FILED BEFORE THE ADDITIONAL DIRECTOR GENERAL OF POLICE DTD. 12/08/2011. EXT.P.11: COPY OF THE ORDER IN C.M.P.4260/10 DTD. 10/01/2011 AND PETITION. EXT.P.12: COPY OF THE AFFIDAVIT FILED BY THE PETITIONER THROUGH THE COMMISSIONER BEFORE THE CHIEF JUDICIAL MAGISTRATE COURT, THIRUVANANTHAPURAM DT. 16/08/2011. EXT.P.13: COPY OF THE REPRESENTATION DTD 20/08/2011 GIVEN BY THE PETITIONER TO THE R.6 . RESPONDENT'S EXHIBITS:- EXT.R3.A: COPY OF THE SALE DEED NO.189 DTD. 23/01/2003 VOLUME NO.728, PAGES 283-288 OF THE KARAKULAM SUB REGISTRY EXECUTED BY SMT. KUMARI SHYLAJA IN FAVOUR OF NAINA MOHAMMED. W.P.(C).NO.22534/2011-N: EXT.R3.B: COPY OF THE EXCHANGE DEED NO.1713 DTD. 10/09/2008, VOLUME NO.611, PAGES 265-269 OF THE KARAKULAMS UB REGISTRY EXECUTED BETWEEN KUMARI SHYLAJA AND SHEEBA JOINTLY. EXT.R3.C: COPY OF THE PARTITION DEED NO.2608 DTD. 18/09/1996 VOLUME NO. 559, PAGES 485-494 OF THE KARAKULAM SUB REGISTRY EXECUTIVE BETWEEN VIJAYAMMA, KUMARI SHYLAJA, SHAJIKUMAR AND SHEEBA JOINTLY. EXT.R3.D: COPY OF THE MORTGAGE DEED NO.1753 DTD. 22/10/1986 VOLUME NO.317, PAGES 265 - 267 OF THE KARAKULAM SUB REGISTRY EXECUTED BY SAHADEVAN IN FAVOUR OF KARAKULAM SERVICE CO-OPERATIVE BANK LTD. 3064. EXT.R3.E: ENCUMBRANCE CERTIFICATE DTD. 06/01/2009 & 28/01/2009. EXT.R3.F: LAND TAX RECEIPT DTD. 10/06/2009. EXT.R3.G: BUILDING TAX RECEIPT DTD 18/11/2008. EXT.R3.H: POSSESSION CERTIFICATE DTD. 16/06/2009. EXT.R3.I: LOCATION CERTIFICATE NO.2172/09 DTD. 16/06/2009. EXT.R3.J: COPY OF THE LEGAL HEIRSHIP CERTIFICATE DTD. 27/01/2007. EXT.R3.K: COPY OF THE LETTER DTD 05/06/2009 ISSUED BY UNION BANK OF INDIA, THIRUVANANTHAPURAM TO THE R.3. EXT.R3.I: COPY OF THE LETTER DTD. 06/06/2009 ISSUED BY THE R.3. TO THE UNION BANK OF INDIA, THIRUVANANTHAPURAM. EXT.R3.M: COPY OF THE LOAN AGREEMENT DTD. 06/06/2009. EXT.R3.N: COPY OF THE UNDERTAKING LETTER DT.D 06/06/2009. EXT.R3.O: COPY OF THE POWER OF ATTORNEY DTD. 06/06/2009. EXT.R3.P: COPY OF THE LETTER OF HYPOTHECATION DTD. 06/06/2009. EXT.R3.Q: COPY OF THE MEMORANDUM OF DEPOSIT OF TITLE DEEDS EXECUTED BY THE DEFENDANTS 3 & 4 JOINTLY IN FAVOUR OF THE BANK. //TRUE COPY// P.S. TO JUDGE Prv. S. Siri Jagan, J. =-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-= W.P(C) No. 22534 of 2011 =-=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-= Dated this, the 22nd day of September, 2011. J U D G M E N T The petitioner purchased certain properties from respondents 4 and 5. After purchasing the same, the petitioner came to understand that the said property is the subject matter of proceedings for recovery of loan amounts due from respondents 4 and 5 to three banks represented by respondents 1, 2 and 3. The petitioner submits that the original of the documents can be deposited with only one bank for creating mortgage by deposit of title deeds. That being so, the property could not have been mortgaged to three banks. The petitioner submits that there is collusion between respondents 4 and 5 with at least two of the banks. The 1st respondent has initiated proceedings under the Securitisation & Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 for recovery of loan amounts due from respondents 4 and 5 to the 1st respondent. The petitioner is challenging the same on the ground of fraud. 2. I have heard the learned counsel for the petitioner, counsel for respondents 1 and 2, counsel for the 3rd respondent and the learned Government Pleader appearing for the 6th respondent. 3. The question as to whether there is fraud or not and as to whether the same property was mortgaged with 3 banks are questions of fact, which can be decided only on the basis of evidence. This Court cannot ordinarily take evidence in a writ W.P(C) No. 22534 of 2011 -: 2 :- petition. In the above circumstances, the appropriate remedy available to the petitioner is to file an application under Section 17 of the Act before the Debt Recovery Tribunal . Accordingly, without prejudice to that right, this writ petition is dismissed. However, taking into account the averments in the writ petition, I direct that to enable the petitioner to file an application under Section 17 of the Act and to move the Debt Recovery Tribunal for appropriate interim orders, further proceedings initiated by the 1st respondent under the Act shall be kept in abeyance. Sd/- S. Siri Jagan, Judge. Tds/