IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON WEDNESDAY, THE 8TH APRIL 2009 / 18TH CHAITHRA 1931 WP(C).No. 12684 of 2007(I) ------------------------------------- PETITIONER: ------------------- K.S.JABBAR,AGED 37,S/O.SAID, KALOOPARAMBIL,RESIDING AT THATTUMURI,PALARIVATTOM DESOM,POONITHURA VILLAGE,PALARIVATTOM P.O. BY ADVS. MR.K.V.JAYACHANDRAN, MR.RAJU V.MATHEW. RESPONDENTS: ------------------------ 1. VIJAYA BANK, REPRESENTED BY AUTHORISED OFFICER, SECURITISATION AND RECONSTITUTION OF FINANCIAL ASSETS,REGIONAL OFFICE AND R R JOSE ANEX, JOSE JUNCTION M.G.ROAD,ERNAKULAM. 2. THE MANAGER,VIJAYA BANK REGIONAL OFFICE AND R R, JOSE ANEX,JOSE JUNCTION,M.G ROAD,ERNAKULAM. 3. JOMON,AGED 33,S/O.VARGHESE,VELLAMPILLY VEEDU,ASHOKAPURAM P.O,ALUVA WEST VILLAGE,ALUVA TALUK. R1 BY ADVS. MR.D.KRISHNA PRASAD, MR.D.NARENDRANATH, MR.M.HARISHARMA , SMT.O.K.SANTHA. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 08/04/2009,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.12684/2007-I: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE ENCUMBRANCE CERTIFICATE DT. 05/03/2007 ISSUED BY THE EDAPPALLY SRO. EXT.P.2: COPY OF THE INJUNCTION ORDER DTD. 21/06/2003 IN O.S. 846/03 IN THE MUNSIFF COURT, ERNAKULAM. EXT.P.3: COPY OF THE PAPER PUBLICATION ISSUED BY THE R.2. DTD. 26/09/2003. EXT.P.4: COPY OF THE NOTICE DTD. 11/11/2003 ISSUED TO R.2. EXT.P.5: COPY OF THE REPLY NOTICE DTD. 05/12/2003 ISSUED BY R.2. EXT.P.6: COPY OF THE JUDGEMENT DTD. 15/07/2006 BY THE SUB COURT IN O.S. 472/04. EXT.P.7: COPY OF THE NOTICE DTD. 01/03/2007 AFFIXED BY THE RESPONDENTS 1 AND 2 IN THE PROPERTY BELONGED TO THE PETITIONER. EXT.P.8: COPY OF THE NOTICE DTD. 19/03/2007 ISSUED BY THE PETITIONER IN FAVOUR OF RESPONDENTS 1 AND 2. RESPONDENTS' EXHIBITS: EXT.R1.A: COPY OF THE ENCUMBRANCE CERTIFICATE DTD. 24/05/2003 ISSUED BY THE EDAPPALLY SUB REGISTRY OFFICE. EXT.R1.B: COPY OF THE ENCUMBRANCE CERTIFICATE DTD. 04/09/2003 ISSUED BY THE EDAPPALLY SUB REGISTRY OFFICE. EXT.R1.C: COPY OF THE REPLY NOTICE DTD. 17/04/2007 SENT BY THE BANK THROUGH ITS ADVOCATE TO THE PETITIONER'S ADVOCATE. EXT.R1.D: COPY OF THE ACKOWLEDGEMENT CARD DTD. 18/04/2007, EVIDENCING THE RECEIPT OF EXT.R1.D. //TRUE COPY// P.A. TO JUDGE. Prv. P.R.RAMACHANDRA MENON, J. ~~~~~~~~~~~~~~~~~~~~~~ W.P.(C) No. 12684 of 2007 ~~~~~~~~~~~~~~~~~~~~~~ Dated, this the 8th day of April, 2009 J U D G M E N T The petitioner has approached this Court challenging Exhibit P7 proceedings taken by the respondent bank under the relevant provisions of the SARFAESI Act. The case of the petitioner is that he is the absolute owner of the property, enjoying the same with clear title and exclusive possession and that, the said property (originally owned by the 3rd respondent, who allegedly had some loan transaction with the respondent bank) is not liable to be proceeded with by the bank, particularly, when there is no privity of contract or such other rights and liabilities between the petitioner and the respondent bank. 2. It is the case of the respondent bank that the property was originally mortgaged by the 3rd respondent by depositing the title deeds as early as on 14.10.2003 and till date, there was no objection or any order of injunction passed by any Court of Law. This is vehementally opposed from the part of the petitioner, stating that the petitioner had approached the competent Civil Court even much before the said date and that the Court had already passed an order of injunction, stated as communicated to the W.P.(C) No. 12684 of 2007 -:2:- concerned Sub Registry as revealed from Exhibit P1. It is seen from Exhibit P2 order of injunction passed by the Civil Court that, it was passed on 21.06.2003, while the case of the respondent bank is that the property was mortgaged on 14.10.2003 and that the bank was not aware of Exhibit P2 order of injunction. The learned Counsel for the Petitioner asserts with reference to Exhibit P1 encumbrance certificate dated 06.03.2007 issued from the concerned Sub Registry that existence of the interim order of injunction was communicated to the Registrar and it was entered into the relevant register and this being the position, there is absolutely no merit in the submission being made from the part of the respondent bank pleading ignorance. It appears that the petitioner has brought out a prima facie case on the basis of the relevant documents produced before this Court. However, the stand of the respondent bank has also to be examined on the basis of the relevant facts and figures, which can be pursued only by adducing necessary evidence before the appropriate authority i.e; the Debt Recovery Tribunal and this Court does not propose to venture into any such adjudication proceedings invoking the discretionary jurisdiction. 3. In the above facts and circumstances, this writ petition is disposed of, without prejudice to the right of the petitioner to approach the Debt Recovery Tribunal or such other appropriate forum for redressal of his grievance. It is also made clear that all further proceedings pursued by the W.P.(C) No. 12684 of 2007 -:3:- respondent bank will stand deferred for four months, so as to enable the petitioner to approach Debt Recovery Tribunal or such authority for obtaining favourable orders P.R.RAMACHANDRA MENON, JUDGE kmd.