IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON FRIDAY, THE 14TH AUGUST 2009 / 23RD SRAVANA 1931 WP(C).No. 21210 of 2009(U) -------------------------- PETITIONER: --------------- M/S.VINSONS PROJECTS INDIA PRIVATE LIMITED, HAVING REGISTERED OFFICE AT 2 & 3, SHREENATH KRUPA BUILDING, CARTER ROAD NO.5, BORIVALI (EAST), MUMBAI-400 066, REPRESENTED BY ITS DIRECTOR MR.VINEESH R.SHAH. BY ADV. SRI.P.K.SURESH KUMAR ADV. SRI.T.P.RAMACHANDRAN (THACHETH) RESPONDENTS: --------------- 1. UNION BANK OF INDIA, REGISTERED OFFICE AT 239, VIDHAN BHAVAN MARG, NARIMAN POINT, MUMBAI-400 021, HAVING BRANCH KNOWN AS PANAMPILLY NAGAR BRANCH, P.B.NO.4274, PANAMPILLY NAGAR, KOCHI-682 036, ERNAKULAM DIST., REPRESENTED BY ITS CHIEF MANAGER. 2. THE AUTHORIZED OFFICER, UNION BANK OF INDIA, PANAMPILLY NAGAR BRANCH, P.B.NO.4274, PANAMPILLY NAGAR, KOCHI-682 036, ERNAKULAM DISTRICT. BY ADV. MR. A.V. THOMAS, SC. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 14/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.R. RAMACHANDRA MENON, J. ........................................................................ W.P.(C) No. 21210 OF 2009 ......................................................................... Dated this the 14th August, 2009 J U D G M E N T The petitioner has approached this Court challenging the callous inaction of the respondents in disbursing the due amount, pursuant to Ext.P1 verdict. The 3rd respondent in Ext.P1, (M/s. Bhageeratha Engineering Ltd.) owed much amounts to the respondent bank which led to the sale of the concerned property. The sale fetched more amount than the requisite sum to be satisfied towards the liability to the Bank and as such,the balance amount left with the Bank as 'residue' is liable to be disbursed to the petitioner by virtue of the decree obtained by the petitioner, as provided under Section 13(7) of the SARFAESI Act, submits the learned Counsel for the petitioner. 2. The petitioner had approached this Court earlier seeking for a direction to release the residual portion to the petitioner by filing W.P.(C) No. 5358 of 2009, wherein Ext. P1 judgment was W.P.(C) No. 21210 OF 2009 2 passed by this Court directing the second respondent/authorised officer of the Bank to consider the claim put forth by the petitioner, of course, after giving an opportunity of hearing to all the claimants and to pass appropriate orders thereon. It was accordingly, that the matter was considered by the second respondent and after hearing all the parties including the third respondent to Ext.P1 and also the 7th respondent therein/another claimant who had obtained an order of attachment to an extent of nearly Rs. Two crores against the defaulter/M/s. Bhageeratha Engineering Limited, Ext. P2 order was passed, whereby, out of the total residual portion of Rs.7,43,90,118/-, a sum of Rs.5,43,90,118/- was held as liable to be paid to the petitioner, while retaining the balance amount in respect of the claim preferred by the other claimant as aforesaid. The grievance of the petitioner is that, despite passing Ext.P2, which has become final, the amount is still to be disbursed to the petitioner. 3. The respondents have filed a counter affidavit essentially pointing out “some” hurdles in the matter of disbursement. The first one is that, the 7th respondent to Ext. P1 judgment/another W.P.(C) No. 21210 OF 2009 3 claimant (who is similarly situated like the petitioner) is not made a party to the present Writ Petition. The other contention is that the Bank has already been served with Ext.R1(a) notice dated 22.07.2009 issued by the Tahsildar, Kanayannur, whereby a claim has been put forth to an extent of Rs. 1,22,611/- to be realised from M/s. Bhageeratha Engineering Limited (3rd respondent in Ext.P1) towards the 'Sales Tax arrears'. The third contention, as raised in paragraph No.6 of the counter affidavit is that the residual amount, as contemplated under Section 13(7) of the Act, can be released, only if the party has obtained a 'decree' as envisaged under the relevant provisions of law. 4. With regard to the first point, i.e., the claim of the 7th respondent to Ext.P1, sought to be protected by the Bank, it is to be noted that the said respondent was very much a party to Ext. P1 judgment and by virtue of the specific direction given by this Court, the said respondent was heard by the second respondent while passing Ext. P2, which admittedly has become final. That apart, the rights and interests of the said respondent have very much been taken care of by the second respondent, in W.P.(C) No. 21210 OF 2009 4 so far as Ext. P2 order provides for disbursement of only a sum of Rs. 5,43,90,118/- and the balance sum of Rs.Two crores is still left with the Bank, in view of the claim preferred by the said respondent. The learned Counsel for the petitioner also points out that the 7th respondent to Ext. P1 had already approached the Sub Court, Ernakulam by filing O.S.No. 345 of 2009, wherein a blanket injunction had been ordered against the petitioner, from collecting any amount from the Bank. Subsequently, on entering appearance by the petitioner, the above order of injunction was got modified as per the order dated 10.06.2009, as agreed between the parties, and it was limited to Rs. Two crores. A true copy of the said order has been produced by the petitioner along with I.A.No.9680 of 2009. This being the position, the interest of the 7th respondent stands well protected and non-impleadment of the said respondent in the party array cannot place any hindrance at all. 5. With regard to the second contention, placing reliance on Ext.R1(a) communication stated as issued by the concerned Tahsildar, referring to the dues payable to the State from the W.P.(C) No. 21210 OF 2009 5 original owner of the property, ie., the third respondent to Ext. P1 judgment, the learned Counsel for the petitioner submits that the said amount, i.e., Rs.1,29,611/- can very well be retained by the Bank and the balance has to be disbursed to the petitioner. 6. Coming to the third contention, i.e., the necessity to have a 'decree' passed by a competent Court for enabling disbursement under Section 13(7)of the Act, it is very much discernible from the proceedings before this Court, particularly Ext.P2, that the petitioner has already obtained a 'decree' and that the claim has been put forth on the basis of the said decree. That apart, there was a specific direction given by this Court vide Ext. P1 judgment with regard to the claim of the petitioner, whereby the second respondent was given absolute freedom to consider the facts and circumstances and to pass appropriate orders. It was pursuant to this, that the said respondent passed Ext. P2, which has become final. 7. In the above facts and circumstances, the second respondent is directed to disburse the amount ordered as per Ext.P2, to the petitioner,after retaining the amount covered by W.P.(C) No. 21210 OF 2009 6 Ext. R1(a), which shall be done as expeditiously as possible and at any rate, within 'ten days' from the date of receipt of a copy of the judgment. The Writ Petition is allowed as above. No costs. P.R. RAMACHANDRA MENON, JUDGE. lk