IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN MONDAY, THE 2ND FEBRUARY 2009 / 13TH MAGHA 1930 WP(C).No. 32937 of 2008(U) -------------------------- PETITIONER(S): --------------- GEETHA SATHYAN, W/O.SATHYAN, ASHWATHI, VALAPPAYA, THRISSUR. BY ADV. SRI.RENJITH B.MARAR SRI.L.RAJESH NARAYAN SMT.LAKSHMI.N.KAIMAL RESPONDENT(S): --------------- 1. THE STATE BANK OF TRAVANCORE, WADAKKANCHERY BRANCH, THRISSUR, REPRESENTEDBY ITS BRANCH MANAGER. 2. THE AUTHORIZED OFFICER, STATE BANK OF TRAVANCORE, VADAKKANCHERY, THRISSUR. 3. P.K.KANNAN, AGED 46 YEARS, S/O.LATE PARAMESWARAN NAIR, MANAGING DIRECTOR, M/S.VIJAYA CONSTRUCTIONS, VIJAYA BHAVAN, PONKUNNAM P.O., THRISSUR. 4. K.SASIKUMAR, S/O.RAMAN NAIR, PANICKATH HOUSE, THRISSUR. ADDL.5. K.THANKAMMA, PANIKKAT HOUSE, VELAPPAYA P.O., THRISSUR. 6. VINODINI, PANIKKAT HOUSE, VELAPPAYA P.O., THRISSUR. 7. LATHA, PANIKKAT HOUSE, VELAPPAYA P.O., THRISSUR. WPC.32937/08 2 8. BABURAJAN, POST BOX NO.15053, JEDDAS SAUDI ARABIA (ADDL.R5 TO R8 IMPLEADED VIDE ORDER DATED 1.12.2008 ON I.A.NO.15374/08) R1, R2 BY ADV. SRI.SATHISH NINAN SRI.SANTHOSH MATHEW R4 BY SRI.P.SANTHOSH (PODUVAL) SMT.R.RAJITHA R3 BY ADV.SRI.M.R.DHANIL THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 02/02/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOTTATHIL B.RADHAKRISHNAN, J. ------------------------------------------- W.P(C).No.32937 OF 2008 ------------------------------------------- Dated this the 24th day of November, 2008 O R D E R The petitioner challenges action taken under the SARFAESI Act by dispossessing her from her residential building. 2. According to her, she and her husband were not involved in the business activity of her brother or the principal debtor - first respondent. The petitioner had executed a power of attorney in favour of her brother, the 4th respondent. He, in turn, created an equitable mortgage in favour of the bank. One of the fundamental contentions of the petitioner is that the power of attorney does not authorise creation and imposition of obligations of a guarantor on the petitioner; and without fastening such liability, a mortgage could not have been created except for obtaining funds for the purpose of the petitioner. It is accordingly argued that the petitioner not being a co-obligant or recipient of funds from the bank, her properties could not have WPC.32937/08 Page numbers been mortgaged to support the loan availed by the third respondent. 3. Whatever that be, the total outstandings, as of now, is stated to be around Rs.2.25 crores. The properties of the principal debtor are with the bank. It appears that respondents 3 and 4 had different earlier transactions between them. The 4th respondent submits that his sister, the petitioner, was not the beneficiary of the loan or of any business for which the loan was utilised. 4. In the aforesaid circumstances, the premises being a residential building, it is appropriate that the bank fixes a proper rate of occupation charges for the petitioner to continue to be in occupation of the building in question, wherein, all her movables are stated to be available, so that she and her family could reside there and could vacate if the bank proceeds to list the property for sale later on, in terms of further orders. This arrangement could be worked out even taking into consideration the WPC.32937/08 Page numbers possibility of respondents 3 and 4 depositing the amounts that could reduce the outstandings to a considerable extent. Post for further consideration on 27.11.2008. H/o. Copy to all parties. THOTTATHIL B.RADHAKRISHNAN, Judge. kkb.