IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN WEDNESDAY, THE 2ND JULY 2008 / 11TH ASHADHA 1930 WP(C).No. 31856 of 2004(P) ----------------------------------------- PETITIONER: --------------------- THE THODUPUZHA URBAN CO-OPERATIVE BANK LTD.NO.394, THODUPUZHA, IDUKKI DIST. REPRESENTED BY ITS GENERAL MANAGER. BY ADV. SRI.ALEXANDER JOSEPH RESPONDENTS: ------------------------- 1. THE STATE OF KERALA, REPRESENTED BY ITS SECRETARY AND COMMISSIONER TO DEPARTMENT OF CO-OPERATION, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES (GENERAL), PAINAVU, IDUKKI. 3. THE SPECIAL SALE OFFICER, O/O. THE ASSISTANT REGISTRAR OF CO-OPERATIVE SOCIETIES (GENERAL), THODUPUZHA. 4. THE KERALA KHADI AND VILLAGE INDUSTRIES BOARD, REPRESENTED BY ITS SECRETARY, THIRUVANANTHAPURAM. 5. THE DISTRICT KHADI AND VILLAGE INDUSTRIES OFFICER, THODUPUZHA. 6. THE TAHSILDAR (REVENUE RECOVERY) THODUPUZHA. Kss ..2/- ...2.... WPC.NO.31856/2004 P 7. M.M. JIMMY, S/O. MANI, MANGALATHU HOUSE, VENMATTAM KARA, VANNAPPURAM VILLAGE, P.O. MUNDANMUDY, THODUPUZHA, IDUKKI DISTRICT. 8. THOMAS *(VARKEY),* GEORGE S/O. VARKEY, MUNDAKAVIL HOUSE, VENMATTAM KARA, VANNAPPURAM VILLAGE, P.O. EZHUMUTTOM, THODUPUZHA, IDUKKI DISTRICT. *(CORRECTED AS PER ORDER DTD. 12/03/2008 IN I.A.NO.3319/08) BY SR.GOVERNMENT PLEADER SRI.P.K.RAVIKRISHNAN – R1& R2 ADV. SRI.K.J.JOSE FOR R7 SRI.V.C.JAMES FOR R7 SRI.PAUL JOSE FOR R7 SRI.V.V.JOSHI (SC, KHADI BOARD)- R4 & R5 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 02/07/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.31856/2004 P APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE LOAN BOND NO.LTL 50/99 DTD. 01/09/99. EXT.P2: COPY OF THE SALE DEED NO.2438/99 DTD. 28/07/1999. EXT.P3: COPY OF THE AFFIDAVIT DTD. 31/08/1999 OF RESPONDENT NO.7. EXT.P4: COPY OF THE AFFIDAVIT DTD. 31/08/1999 OF RESPONDENT NO.8. EXT.P5: COPY OF THE AWARD DTD. 27/02/2001 IN ARC NO.4113/2000. EXT.P6: COPY OF THE DEMAND NOTICE DTD. 22/09/2004 IN E.P.NO.730/04. EXT.P7: COPY OF THE NOTICE NO.B7-2738/04 DTD. 07/10/2004 ISSUED BY THE 6TH RESPONDENT. RESPONDENT'S EXHIBITS: EXT.R7(A): COPY OF THE AGREEMENT DTD. 13/01/2004. /TRUE COPY/ P.A.TO JUDGE Kss THOTTATHIL B. RADHAKRISHNAN, J. ---------------------------------------------------------------- W.P.(C) NO.31856 OF 2004 (P) ---------------------------------------------------------------- Dated this the 2nd day of July, 2008 J U D G M E N T The fourth respondent Kerala Khadi and Village Industries Board brought certain properties belonging to the eighth respondent to sale with the intervention of the sixth respondent Tahsildar for recovery of amounts due to it from the eighth respondent. In the meanwhile, the eighth respondent sold the property to the seventh respondent, who, in turn, mortgaged it to the petitioner co-operative bank and obtained a loan. This writ petition is filed by the bank contending that the mortgage has a precedence over the attachment. 2. When the eighth respondent sold his property to the seventh respondent he conveyed his title. When the seventh respondent mortgaged the property to the petitioner, in law, he retained what is called equity redemption. The attachment imposed at the instance of the fourth respondent is, at least, on the equity of redemption. W.P.(C) No.31856/04 - 2 - 3. The bank has a larger claim. At the same time, the fourth respondent has also to be satisfied. The value of the property appears to be sufficient enough to cover the outstandings to the petitioner bank and to the fourth respondent Khadi Board. 2. Following different rounds of submissions before this Court, as directed, the fourth respondent has placed on record, a statement, which reflects that the amount due as on 30-6-2008 is Rs.6,64,640/-. If such amount is paid to the fourth respondent, such discharge will bring home to the petitioner, the right to sell the property in execution to recover that amount as also any further accruals thereon by way of interest and other incidentals. 3. For the aforesaid reasons, this writ petition is ordered as hereunder:- i) The writ petitioner will pay to the fourth respondent an amount of Rs.6,64,640/- in full and final settlement of the claims of the fourth respondent as against eighth W.P.(C) No.31856/04 - 3 - respondent. Such amount shall be paid by the petitioner within ten days from the date of receipt of a copy of this judgment. On such payment, the attachment in question shall stand released. ii) The payment as aforesaid will be treated as a debt due to the petitioner from the seventh respondent. Thereby the total outstandings due from the seventh respondent to the petitioner, as on 30-6-2008 will stand enlarged by a further amount of Rs.6,64,640/- on account of the aforesaid payment. iii) Treating the aforesaid amount also as part of debt due from the seventh respondent, by the force of this judgment, the third respondent will be entitled to recover the entire amounts due from the seventh respondent including the aforesaid amounts and further accruals thereon, charged on the property already mortgaged to the petitioner and all other W.P.(C) No.31856/04 - 4 - assets of the seventh respondent and also from him personally, ultimately. The third respondent sale officer is directed to enforce recovery in terms of what is stated aforesaid and conclude proceedings within an outer limit of three months, from now. It is further directed that any aid of the civil court, if sought for by the competent authority, will also be extended by treating as if this order is a decree for the purpose of execution. Sd/- THOTTATHIL B. RADHAKRISHNAN, JUDGE skr/3-7-08 // True copy // P.A. to Judge.