IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN TUESDAY, THE 4TH MARCH 2008 / 14TH PHALGUNA 1929 WP(C).No. 1517 of 2008(E) ------------------------- PETITIONER: ------------------ 1. KRISHNADAS, AGED 39 YEARS, S/O. KALLATTU RAMANKUTTY, AYYANTHOLE VILLAGE, THRISSUR TALUK. 2. BOBAN, AGED 46 YEARS, S/O. CHAKKALAKKAL JOSE, PALAKKAL DESOM, PALISSERY DESOM, PALISSERY VILLAGE, THRISSUR TALUK. BY ADV. SRI.P.SANTHOSH (PODUVAL) SMT.R.RAJITHA RESPONDENTS: ---------------------- 1. GENERAL MANAGER, THRISSUR URBAN CO-OPERATIVE BANK LTD., HEAD OFFICE, MISSION QUARTERS, THRISSUR. 2. K.K.SAJEEVAN, S/O. KUTTAPPAN, KOZHIPPARAMBIL HOUSE, VYSSERI DESOM, KUNNAMKULAM VILLAGE, TALAPPILLY TALUK. BY ADV. SRI.V.V.ASOKAN SMT.S.AMINA THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 04/03/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Thottathil B. Radhakrishnan, J. ================================== W.P.(C)No.1517 of 2008 ================================== Dated this the 4th day of March, 2008. JUDGMENT The second respondent mortgaged an item of property in favour of the first respondent as security for a loan from it, on 6-7-1999. Thereafter, he sold that property to the petitioners, as per Exts.P1 and P2. 2. Owing to default in repaying the loan, proceedings were initiated under the SARFAESI Act. Petitioners intended to sell off the entire property after clearing the liability outstanding to the first respondent. Asserting that the purchasers have paid the entire consideration and that documents have been drawn up on stamp papers (copies of which were produced along with the writ petition as Exts.P3 and P4), the petitioners seek a direction to the first respondent that, on WPC1517/2008 -:2:- remitting the amount, the documents may be released, to complete the sale. It is also pleaded in the writ petition that, when approached by the petitioners to co-operate in the release of the documents from the first respondent, the second respondent refused to do so, on the premise that the first respondent has filed a criminal complaint against and that the second respondent in relation to the transaction in question. 3. Noticing that the second respondent did not enter appearance even after service of notice through special messenger, an interim order was issued directing that all the documents in relation to the property involved in the transaction shall be released to the petitioners if they remit the entire amounts due under the transaction and execute bond without sureties, agreeing to indemnify the first respondent for any loss that may be caused in relation to the transaction. WPC1517/2008 -:3:- 4. Thereafter, through a counter affidavit, the second respondent states that the service of notice through the special messenger was fraudulently done, excluding notice to him and that he has filed a private complaint in relation to the bank transaction. He also attempts to make out a case against one Sri.T.G.Sajeevan, stated to be the power of attorney holder of the petitioners, going by Ext.P5. 5. But, the most crucial fact, namely, the execution of Exts.P1 and P2 sale deeds, has been specifically admitted in paragraph 8 of his counter affidavit, though the second respondent states that those documents were executed under the then existing constraints. He has not attempted to sustain, before any competent court, that those documents are either void or voidable in accordance with law. I notice this because, Exts.P1 and P2 are executed on 14-7-1999 and until now, no action WPC1517/2008 -:4:- has been taken by the second respondent to challenge those documents. In fact, he does not challenge them, even going by the averments in paragraph 8 of the writ petition. It is impossible and improper to enter any conclusion against the petitioners as regards their title in terms of Exts.P1 and P2. Therefore, the petitioners are entitled to release of documents, they, having paid off the entire amounts. 6. On to the question of service of notice, I have considered the endorsements made by special messenger on the reverse of the duplicate copy of the notice. It is signed by witnesses and it is recorded that the mother and sister of the second respondent stated that for about two years, he is not staying in that house and they do not know about his residence, though his case in his counter affidavit is that he is residing in that building and that his passport entries would show WPC1517/2008 -:5:- that he is in India. There is no material to hold that there was no proper service of notice. That apart, in view of the findings in paragraph No.5 above, the second respondent has no case on merits, to prevent the flow of the legitimate right of the petitioners emanating from Exts.P1 and P2 transactions. For the aforesaid reasons, this writ petition succeeds and hence, the interim order dated 14-1- 2008 is made absolute and writ petition is allowed accordingly. No costs. Thottathil B.Radhakrishnan, sl. Judge.