IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM TUESDAY, THE 22ND SEPTEMBER 2009 / 31ST BHADRA 1931 WP(C).No. 26948 of 2008(G) -------------------------- {S.A.NO.107/2008 OF THE DEBT RECOVERY TRIBUNAL, ERNAKULAM} .................... PETITIONER(S): -------------------- JOSEPH JACOB, S/O JACOB KURIAN, PEDIKAL MARUTHI SERVICES, NEAR POST OFFICE, EDAPPALLY, KOCHI -34. BY ADV. SRI.DINESH MATHEW J.MURICKEN SRI.P.V.BALAKRISHNAN RESPONDENT(S): --------------------- 1. ALLAHABAD BANK, ERNAKULAM BRANCH, REP. BY ITS MANAGER, 1837/88F, M.G. ROAD, ERNAKULAM. 2. THE AUTHORISES OFFICER, ALLAHABAD BANK, ZONAL OFFICE, 112, SIR THYAGARAJA ROAD, T. NAGAR, CHENNAI. 3. M.O. VARGHESE,MEKKATTUPARAMBIL HOUSE, PADAMUGAL, KAKKANADU, ERNAKULAM. ADV. SRI.VIVEK VARGHESE P.J. FOR R1-2 SRI.P.J.VINOD JOSEPH FOR R1-2 SRI.S.SUDHISH KUMAR FOR R3 SRI.K.B.DAYAL FOR R3 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 22/09/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 26948 of 2008 :: :: APPENDIX PETITIONERS' EXHIBITS: EXT.P1: COPY OF POSSESSION NOTICE ISSUED ON THE APPLICANT DTD. 4.3.2008. EXT.P2: COPY OF POSSESSION NOTICE PUBLISHED IN THE MALAYALA MANORAMA NEWS PAPER DTD. 12.3.08. EXT.P3: COPY OF AUCTION NOTICE PUBLISHED IN THE MALAYALA MANORAMA DTD. 28.5.2008. EXT.P4: TRUE COPY OF S.A.NO.107/2008 EXT.P5: TRUE COPY OF I.A.NO.1122/2008 IN S.A.107/2008 DTD. 12.7.2008. EXT.P6: TRUE COPY OF THE NOTICE ISSUED BY THE ADVOCATE COMMISSIONER IN CMP NO.7665/2008 RESPONDENTS' EXHIBITS: NIL EXT.R3(A): TRUE COPY OF THE SALE CERTIFICATE DATED 6.8.2008. EXT.R3(B): TRUE COPY OF THE JUDGMENT DATED 29.10.2008 IN W.P.(C)NO.31208/2008 OF THIS HON'BLE COURT. //true copy// P.S. To Judge SK/- C.K.ABDUL REHIM,J. ------------------------------- WP(C).NO. 26948 of 2008 --------------------------------- Dated this the 22nd day of September, 2009 JUDGMENT The above writ petition is filed challenging sale effected with respect to immovable properties owned by the petitioner, which was mortgaged with the first respondent-Bank, for securing a loan. Since repayment in the loan account was defaulted, the Bank initiated proceedings under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act (SARFAESI Act) and the secured asset was put to auction and sold on 28.6.2008 to the third respondent herein, for a sum of Rs.7,70,000/-. Aggrieved by the sale the petitioner had approached the Debt Recovery Tribunal by filing Ext.P4. Since the Tribunal had not considered the said application, this writ petition was filed. 2.By virtue of interim orders of this court, dated 9.9.2008 and 6.11.2008, the petitioner was permitted to pay off the entire liability to the tune of Rs.12,50,000/- . On payment of the said amount the writ petition was closed by this court through judgment dated 9.1.2009, directing the Bank to return the Title Deed of the WPC.26948/2008 2 property, since the loan transaction was deemed as closed. Eventhough the auction purchaser (third respondent) was a party in the writ petition, he has not entered appearance at that time. Subsequently the third respondent filed a petition seeking review of the judgment which was allowed by this court as per order dated 1.4.2009 and the writ petition was restored. 3. Contention of the third respondent is that pursuant to the auction he had deposited an amount of Rs.7,70,000/- as early as on 14.7.2008. Subsequently the Bank had taken over possession of the property and sale certificate was issued in favour of the third respondent. But the registration of the sale deed has not been completed. However the third respondent fairly conceded that he is not insisting for materialisation of the sale, but the Bank should return the amount deposited along with reasonable interest. Learned counsel for the first respondent Bank submitted that they are prepared to return the amount deposited by the third respondent. But they refute any liability for payment of interest. According to the learned counsel for the petitioner it is because of the fault of the first respondent Bank in not properly disclosing about the money received from the third respondent, WPC.26948/2008 3 that the earlier orders of this court happened to be issued. He also accuses the third respondent in not appearing before this court on the earlier occasion, inspite of service of notice. 4. Having considered the rival contentions and the facts and circumstances of the case, I am of the opinion that the third respondent having paid the bid amount as early as on 14.7.2008 is entitled to get back the amount, along with reasonable interest. Since the petitioner had approached this court only after confirmation of the sale, the amount of interest if any to be paid to the 3rd respondent shall be borne by the petitioner. 5. Eventhough counsel for the third respondent requested for direction for payment of money along with 16% interest, I am of the opinion that the rate of interest claimed is on the higher side. Having considered the rival contention and the situation prevailing, I am inclined to order that the third respondent is entitled for getting back the amount along with 12% interest. 6. In the result,the sale of immovable property sold pursuant to the auction conducted on 28.6.2008 in favour of the 3rd respondent is hereby set aside. The petitioner is directed to deposit with the first respondent, the amount required for WPC.26948/2008 4 payment as interest to the third respondent, calculated at 12% on Rs.7,70,000/- from 14.7.2008 till 14.10.2008, within a period of one month from today. On such payment the first respondent bank will disburse the said amount of Rs.7,70,000/- along with the interest so deposited, to the third respondent within one week thereafter. The Title Deeds belonging to the petitioner deposited with the Bank shall be returned to the petitioner on deposit of the said amount. 7. It is made clear that on failure to make payment of the amount by the petitioner, the benefit granted under this judgment will stand automatically recalled and the respondent will be free to proceed with further steps pursuant to the sale. The writ petition is disposed of as above. C.K.ABDUL REHIM,JUDGE pmn/ The date "14.10.2008" occurring in paragraph 6 in page 4 of the judgment dated 22.9.2009 in WP(C).No.26948/2008 is corrected and substituted as "14.10.2009" and time limit prescribed for payment of the amounts stipulated is extended till 24.10.2009 as per order dated 20.10.2009 in I.A.No.12806/2009 and I.A.No.12659/2009. Sd/- Registrar (Judicial) WPC.26948/2008 5