IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM THURSDAY, THE 26TH NOVEMBER 2009 / 5TH AGRAHAYANA 1931 WP(C).No. 28870 of 2009(C) -------------------------- PETITIONER(S): --------------- MRS.SHYLA V.KUMAR,W/O.R.VIJAYAKUMAR, AGED 52,NOW RESIDING AT NIRMALAYAM, OPPOSITE PADAM BUS STOP,ELAMAKKARA,KOCHI-26. BY ADV. SRI.R.ANILKUMAR RESPONDENT(S): --------------- 1. BRANCH MANAGER,HONG KONG AND SHANGHAU, BANKING CORPORATION LTD,NEAR MEDICAL TRUST HOSPITAL,M.G.ROAD, ERNAKULAM. 2. BINDU DEVADAS,KANJIRAPARAMBIL HOUSE, H.NO.XI/123,N.PARAVUR MUNICIPALITY,PARAVUTHARA MURI,PARAVUR TALUK. 3. P.S.BABU,S/O.SUBRAMONIAN,PUTHUSSERI HOUSE,PALLIPORT.P.O,MUNAMBAM,KUZHUPPILLI VILLAGE, KOCHI TALKUK. ADV. SRI.VARGHESE C.KURIAKOSE FOR R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 26/11/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).28870/09 APPENDIX PETITIONER'S EXHIBITS:- EXT.P1:- TRUE COPY OF THE SALE DEED 303/09 DT.13.2.04 OF SREEMULANAGARAM SUB-REGISTRY EXT.P2:- TRUE COPY OF THE REGISTERED SALE DEED.2138/07 OF DO. EXT.P3:- TRUE COPY OF THE REGISTERED SALE DEED NO.2870/02 OF DO. EXT.P4:- TRUE COPY OF THE LAND TAX PAID TO THE PROPERTY AS PER RECEIPT NO.46649 DT.21.2.09 EXT.P5:- TRUE COPY OF OF TE ENCUMBRANCE CERTIFICATE TAKEN ON 21.2.2000 EXT.P6:- TRUE COPY OF THE NOTICE ISSUED BY ADVOCATE COMMISSIONER ON 24.9.09 RESPONDENT'S EXHIBITS:- EXT.R1(A):- TRUE COPY OF NOTICE U/S 13(2) OF THE CENTRAL ACT 54 OF 2002 EXT.R1(B):- TRUE COPY OF ORDER DT.26.5.05 EXT.R1(C):- TRUE COPY OF LETTER DT.15.5.06 TO THE OFFICERS UNDER R3. EXT.R1(D):- TRUE COPY OF JUDGMENT IN WP(C).19685/06 DT.28.8.06 OF THIS COURT. OKB //TRUE COPY// P.A. TO JUDGE C.K.ABDUL REHIM, J. ------------------------------ W.P.(C).No.28870 OF 2009 ------------------------------ Dated this the 26th day of November, 2009 J U D G M E N T ---------------------- 1. Averments in the writ petition is to the effect that the petitioner's husband is a bonafide purchaser of a property which has now been proceeded against by the 1st respondent Bank, under the provisions of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI Act). According to the petitioner the purchase was effected by virtue of Ext.P1 sale deed executed by the 2nd respondent, on payment of entire sale consideration. The 2nd respondent derived title with respect to the property by virtue of Ext.P2 sale deed executed by the 3rd respondent. It is stated that after purchase of the property, mutation was effected and the petitioner's husband is paying the land tax due. It is revealed after the purchase that, there existed a mortgage created by the 3rd respondent in favour of the 1st respondent Bank for securing loan availed. It is consequent to default committed by the 3rd respondent, the Bank had initiated proceedings under the SARFAESI Act. The 1st respondent had now approached the Chief Judicial Magistrate Court invoking Section 14(1) and an W.P.(C).28870/09-C 2 Advocate Commissioner was already appointed to take over possession of the property. The writ petition is filed at that stage, seeking directions against the 1st respondent to refrain from further coercive steps. 2. On 13.10.2009 this court issued an interim order, on the basis of relief sought against dispossession, on the following terms: “There would be an interim order as prayed for on condition that the petitioner deposits the amounts demanded by the Bank. The Bank shall not for the present appropriate the amount towards the loan account.” 3. It is submitted by learned counsel appearing for petitioner that, pursuant to the above interim order the petitioner had deposited an amount of Rs.9,98,188/- in a non-lien account. Learned standing counsel for the 1st respondent Bank conceded that the amount so deposited will cover total liability, as on the date of deposit and the liability will be settled subject to future interest accrued. 4. The respondents 2 and 3 had filed counter affidavit to the extent of admitting the sale by the 3rd respondent in favour of the 2nd respondent as well as the sale by the 2nd respondent to the petitioner's husband. But it is contended that the sale to the petitioner's husband was effected after revealing about the W.P.(C).28870/09-C 3 existing liability with respect to the loan availed from the 1st respondent. It is stated that at the time of execution of Ext.P1 sale deed the petitioner's husband was aware that the prior title deed, i.e: Ext.P2, was deposited with the 1st respondent Bank, and that the petitioner's husband had agreed to remit the balance amount payable to the 1st respondent Bank. It is the case of the respondents 2 and 3 that the sale consideration was considerably reduced in view of the fact that there exists liability to be cleared. It is also contended that a power of attorney was executed by the 3rd respondent in favour of the petitioner authorising her to settle the balance amount payable to the 1st respondent and to get back the sale deed which is in deposit. 5. Having considered rival contentions, it is evident that respondents 2 and 3 had conceded the sale made in favour of the petitioner's husband. It is also conceded that the petitioner was authorised to get back the title deed from the 1st respondent Bank on settling the amounts due. Therefore it is clear that there is no dispute as far as respondents 2 and 3 are concerned, that the petitioner's husband is the present owner of the property, holding title over the same and it is also evident that both the respondents 2 and 3 have conceded that they have no objection for the petitioner settling the amount with the Bank W.P.(C).28870/09-C 4 and in getting back the title deed, which is in deposit. 6. Under the above circumstances since the amount due to the Bank has already been paid by the petitioner, I am of the opinion that the matter can be closed directing the Bank to close the loan account after appropriating the amount in deposit and to return the title deed to the petitioner, subject to payment of future interest if any due thereon. Needless to say that the petitioner will be entitled for interest if any accrued with respect to the deposit made in the non-lien account. 7. In the result the writ petition is disposed of directing the petitioner to make payment of the interest due on the amount which now stands in deposit from 13.10.2009 onwards till payment at the same rate at which interest is charged in the loan account concerned, less the amount of interest due under the non-lien account if any as stated above. It is made clear that the 1st respondent can appropriate the amount standing in the non-lien account to the loan account. On payment of the balance amount due as above, the property shall be released from the mortgage and the title deed shall be returned to the petitioner on getting proper acknowledgment. 8. It is made clear that any of the observations contained herein shall not be treated as conclusive findings with respect to W.P.(C).28870/09-C 5 rights and liabilities between the petitioner and respondents 2 & 3, regarding payment of the amounts due to the Bank. If any court proceedings is pending or instituted in this regard, the same shall be decided on its merits untrammeled by any observations contained herein. C.K.ABDUL REHIM, JUDGE. okb