IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM MONDAY, THE 30TH MAY 2011 / 9TH JYAISHTA 1933 WP(C).No. 8692 of 2011(J) ------------------------- PETITIONER(S): --------------- RADHAKRISHNAN, S/O.KADAPPANA VEETTIL BALAN, AGED 57, METHALA VILLAGE DESOM, KODUNGALLUR TALUK. BY ADV. SRI.G.SREEKUMAR (CHELUR) SMT.PREETHY KARUNAKARAN SRI.K.RAVI (PARIYARATH) RESPONDENT(S): --------------- 1. THE PUNJAB NATIONAL BANK, ALUVA, REP. BY THE BRANCH MANAGER, ALUVA VILLAGE, ALUVA TALUK-683 101. 2. THE AUTHORIZED OFFICER, PUNJAB NATIONAL BANK, ERNAKULAM-682 001. 3. BABU, S/O.PUTHUSSERY VEETTIL SUBRAMANIAN, MATTOOR VILLAGE, KALADY, ALUVA TALUK-683 101. 4. VIJAYA, W/O.JNARAKKAT VENKITACHELAPATHY, KADAMANGALAM DESOM AND VILLAGE, NORTH PARAVUR TALUK-682 001. 5. VIPIN, S/O.JNARAKKAT VENKITACHELAPATHY, KEDAMANGALAM DESOM AND VILLAGE, NORTH PARAVUR TALUK-682 001. 6. SILPA, D/O.JNARAKKAT VENKITACHELAPATHY, KEDAMANGALAM DESOM AND VILLAGE, NORTH PARAVUR TALUK-682 001. ADV. SRI.C.AJITH KUMAR - SC THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 30/05/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: C.K.ABDUL REHIM, J --------------------------------------- W.P(C) No.8692 of 2011-J ---------------------------------------- Dated this the 30th day of May, 2011. J U D G M E N T Prayer in this writ petition is for a direction to respondents 1 and 2 to restrain from proceeding against the immovable property with respect to which Ext.P1 suit is pending. The petitioner inter alia seek direction commanding respondents 1 and 2 to provide an opportunity to regularise the loan account for which recovery steps has now been initiated. 2. The loan in question was availed by one Sri.Venkitachalam who is the predecessor in interest of respondents 4 to 6 herein. The above said Sri.Venkitachalam availed the loan from respondents 1 and 2 by mortgaging the immovable property mentioned above. Consequent to default committed in repayment of amounts due under the loan account, proceedings was initiated against the immovable property. The claim of the petitioner is that he was the owner of the property in question and the W.P(C) No.8692 of 2011-J 2 sale deed executed in favour of Sri.Venkitachalam was only a sham document executed for securing certain amounts borrowed by the petitioner from Sri.Venkitachalam. It is submitted that the mortgage with respect to the property was created without notice to the petitioner and without his knowledge. According to the petitioner, Ext.P1 civil suit filed by him for cancellation of the sale deed is pending disposal before the Sub Court, Iringalakuda. Grievance at present is that, during pendency of the civil suit, the respondents 1 and 2 are proceeding with coercive steps for dispossession and sale of the property. 3. Heard; learned standing counsel appearing for respondents 1 and 2. It is submitted that the mortgage in question was created by deposit of valid title deed, by the predecessor in interest of respondents 4 to 6. There exist a valid mortgage created with respect to property in question, which is the secured asset as far as the loan transaction is concerned. Hence, the Bank is perfectly justified in proceeding against the property invoking the provisions of W.P(C) No.8692 of 2011-J 3 the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI Act). It is further pointed out that eventhough civil suit filed by the petitioner is pending, no interim order was issued restraining the Bank from taking further proceedings. In fact the civil suit is filed only as a collusive attempt, is the contention. It is also pointed out that the wife of the petitioner had earlier approached the Debt Recovery Tribunal by filing a securitisation application, under Section 17(1), more or less seeking the same relief, and the said application stands dismissed. Under such circumstances the petitioner has no locus standi to challenge the proceedings and the frivolous attempt made in this regard could not be entertained, is the submission. 4. Confronted with the above contentions, learned counsel for the petitioner submits that he is ready and willing to pay off the liability due to respondents 1 and 2, subject to his rights to pursue the civil suit and also subject to rights of the petitioner to realise the amount from W.P(C) No.8692 of 2011-J 4 respondents 4 to 6. Learned counsel further submits that the petitioner is ready to pay off the liability in 3 (three) equal monthly instalments. 5. Eventhough interference on merits is not warranted under the above mentioned circumstances, I am of the view that, the petitioner can be permitted to save the property from being sold by directing payment of the arrears in the loan account. However, redemption of mortgage and release of title deed will depend upon the stand taken by respondents 4 to 6 or subject to final outcome of the civil suit, which is pending. Therefore, I am inclined to grant an equitable relief permitting payment of the amounts. 6. Accordingly, the writ petition is disposed of directing respondents 1 and 2 to keep in abeyance all further steps for dispossession and sale of the property, which is covered under Ext.P1 suit, subject to condition of the petitioner remitting the entire amounts due in the loan account, including interest and expenses if any, in 3 (three) W.P(C) No.8692 of 2011-J 5 equal monthly instalments, falling due on or before 15.6.2011 and on or before the 15th day of every succeeding months. 7. It is made clear that on the event of default in payment of any one of the instalments, the respondents will be free to proceed with further steps. It is further made clear that the above relief is granted subject to condition that the petitioner is precluded from raising any subsequent challenge against the proceedings. C.K.ABDUL REHIM JUDGE ab