IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HON'BLE THE ACTING CHIEF JUSTICE MR.C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN THURSDAY, THE 13TH OCTOBER 2011 / 21ST ASWINA 1933 WA.No. 1506 of 2011() --------------------- AGAINST THE JUDGEMENT IN WPC.19848/2011 .................... APPELLANTS/PETITIONERS: -------------- 1. K.UNNIKRISHNAN, S/O.LATE C.PARAMESWARA KURUP, KALLATTA CHERUKOTTA HOUSE, NHANGATTIRI P.O, THRITHALA PANCHAYATH, PATTAMBI VIA 679 303. 2. SURENDRAN, S/O. LATE C. PARAMESWARA KURUP, KALLATTA CHERUKOTTA HOUSE NHANGATTIRI P.O, THRITHALA PANCHAYATH, PATTAMBI VIA 679 303. 3. LAKSHMI DEVI, D/O. LATE C. PARAMESWARA KURUP, KALLATTA CHERUKOTTA HOUSE, NHANGATTIRI P.O, THRITHALA PANCHAYATH, PATTAMBI VIA 679 303. 4. GOURI, D/O.LATE C. PARAMESWARA KURUP, KALLATTA CHERUKOTTA HOUSE, NHANGATTIRI P.O, THRITHALA PANCHAYATH, PATTAMBI VIA 679 303. BY ADV. SRI.V.A.MUHAMMED SRI.BIJU .C. ABRAHAM RESPONDENTS/RESPONDENTS: --------------- 1. INDIAN OVERSEAS BANK, G.B.ROAD PALAKKAD REPRESENTED BY ITS AUTHORIZED OFFICER AND CHIEF MANAGER 678 001. 2. NISHA K.N, ADVOCATE COMMISSIONER APPOINTED IN CMP 707/2010 OF THE COURT OF THE CHIEF JUDICIAL MAGISTRATE, PALAKKAD 678 001. 3. THE MANAGER INDIAN OVERSEAS BANK, PALAKKAD BRANCH PALAKKAD 678 001. ADV. SRI.P.B.SURESH KUMAR, SENIOR ADVOCATE FOR R1 & 3 SRI.LEO GEORGE FOR R1 & 3 THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 13/10/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: C.N.RAMACHANDRAN NAIR, Ag.C.J. & P.S.GOPINATHAN, J. ------------------------------- W.A.No.1506 OF 2011 ------------------------------- Dated this the 13th day of October, 2011 J U D G M E N T ~~~~~~~~~~~ C.N.Ramachandran Nair, Ag.C.J. The appeal is filed against the judgment of the learned Single Judge declining to interfere with the securitisation proceedings initiated for sale of the property belonging to borrowers. The learned Single Judge rejected the W.P.(C) on the ground that the appellants have an alternate remedy in the matter. 2. We have heard the learned counsel appearing for the 1st respondent Bank also. The appellants' counsel has referred to Ext.P4, which is a letter issued by the Advocate Commissioner to the 1st appellant, stating that the property possessed by the 1st appellant is taken over by her under orders from the Magistrate Court for recovery of arrears due from the borrowers. It is Ext.P4 that was under challenge before the learned Single Judge and before us. The counsel appearing for the bank submitted that the appellant only claims possession over mortgaged property, which is not tenable. We are unable W.A.No.1506/2011 2 to accept this contention because the fact that the Advocate Commissioner issued notice to the 1st appellant itself shows that atleast part of the property mortgaged by the bank is in his possession. The total property under mortgage is 431 cents. The claim of the appellants is only on 15 cents and therefore nothing stops the bank from selling the bank from selling the balance remaining, which is 416 cents after excluding the 15 cents. So far as the 15 cents of land is concerned, the Chief Judicial Magistrate should conduct enquiry as to whether the appellants are in bonafide possession and if there is any dispute in title including possession the matter should be first settled before proceedings for sale of the 15 cents of land. However, if appellants are not found to be in legal possession of the 15 cents of land, then the said 15 cents of land belonging to the borrowers also could be sold. The Writ Appeal is disposed of modifying the judgment as above. (C.N.RAMACHANDRAN NAIR, Acting Chief Justice) (P.S.GOPINATHAN, JUDGE) ps/13/10