IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 20TH JUNE 2008 / 30TH JYAISHTA 1930 WP(C).No. 23597 of 2007(H) -------------------------- OS.464/2002 of ADDL.SUB COURT, IRINJALAKUDA .................... PETITIONERS: --------------- 1. MRS.SHERLY JOHN, W/O.K.M.JOHNY, FLAT NO.15, MARUTI COMPLEX, NEAR ASHOKATHEATRE, PIMPRI, PUNE, MAHARASHTRA REPRESENTED BY POWER OF ATTORNEY HOLDER THE 2ND PETITIONER. 2. MR.K.M.JOHNY, S/O.MATHAI, FLAT NO.15, MARUTI COMPLEX, NEAR ASHOKATHEATRE, PIMPRI, PUNE, MAHARASHTRA. BY ADV. SRI.SATHISH NINAN SRI.SANTHOSH MATHEW SRI.T.KRISHNANUNNI (SR.) RESPONDENT: --------------- THE CATHOLIC SYRIAN BANK LTD., PUNE BRANCH REPRESENTED BY ITS BRANCH MANAGER. BY ADV. SRI.B.S.KRISHNAN SC FOR R1 SRI.K.ANAND (A.201) FOR R1 SMT.LATHA KRISHNAN FOR R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 20/06/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX Petitioners’ Exhibits:- Ext.P1:- Photocopy of the decree in O.S> 464/02 of Sub Court, Irinjalakkuda Ext.P2:- Photocopy of application I.A. 1242/07 Ext.P3:- Photocopy of the objection filed by decree holder in OS 464/02 Ext.P4:- Photocopy of the plaint in OS 464/02 Ext.P5:- Photocopy of the application and affidavit filed by respondent Ext.P6:- Photocopy of the order in O.S. 464/02 of the Sub Court Ext.P7:- Photocopy of the application dt. 20.6.2005 Respondent’s Exhibits:- Annexure 1:- True copy of supplementary memorandum of deposit of title deeds. //True copy// P.A. to Judge M. SASIDHARAN NAMBIAR, J. ------------------------------------------ W.P(C). NO. 23597 OF 2007 ------------------------------------------ Dated this the 20th day of June, 2008 JUDGMENT This petition is filed under Article 227 of the Constitution of India to set aside Ext.P6 order, where under trial court refused to direct plaintiff Bank to return the document of title deposited by the petitioner for availing the loan involved in the suit. The petition was filed contending that when the title deeds were produced to create equitable mortgage for the loan advanced in the transaction involved in O.S. 464 of 2002 as the liability was closed, the title deeds should be returned. Learned senior counsel for petitioner argued that if there was any other charge, the said claim should have been consolidated in O.S.464 of 2002 and as it was not done Ext.P6 order is to be quashed. It was also argued that subsequently a petition was filed before Debt Recovery Tribunal seeking an order of attachment of this property as additional security which shows that there was no mortgage. WPC23597/07 2 2. Respondent produced a copy of the order passed by Debt Recovery Tribunal, Pune in O.A. 136 of 2002 as well as the copy of supplementary memorandum of deposit of title deeds, showing that the very same property was mortgaged to the plaintiff Bank and on that basis a decree was granted. The documents establish that the property covered under title deed was mortgaged for the loan which was the subject matter of O.A. 136 of 2002 and that suit was decreed. In such circumstances petitioner is not entitled to get back the documents on satisfying the decree in O.S. 464 of 2002. The writ petition is therefore dismissed. M. SASIDHARAN NAMBIAR, JUDGE Okb/-