IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN WEDNESDAY, THE 10TH JUNE 2009 / 20TH JYAISHTA 1931 WP(C).No. 7969 of 2007(W) ------------------------- PETITIONERS: --------------- 1. T.P.SENHALATHA, W/O.LATE MOHANAN, THEKKEDATH HOUSE, VAIKOM, KOTTAYAM. 2. K.V.KOCHU MUHAMMED, S/O.VEERAVUNNI, VAIPPEL, PALAMKADAVU, MARAVANTHURUTHU P.O., VAIKOM, KOTTAYAM DISTRICT. BY ADV. SRI.T.A.SHAJI SMT.T.V.NEEMA RESPONDENTS: ----------------- 1. THE KEALA STATE DEVELOPMENT CORPORATION FOR SCHEDULED CASTES AND SCHEDULED TRIBES LTD. REPRESENTED BY ITS REGIONAL MANAGER, ST.ANTONY'S COMPLEX, NAGAMPADAM, KOTTAYAM. 2. THE PROJECT OFFICER, PROJECT OFFICE (COIR), VAIKOM. 3. M.K.CHANDRA BABU, S/O.KELAN, KAVIMATTATHIL HOUSE, KALLARA, VAIKOM, KOTTAYAM. 4. THE ASSISTANT DISTRICT INDUSTRIES OFFICER, TALUK INDUSTRIES OFFICE, VAIKOM. 5. THE ADMINISTRATIVE ASSISTANT, DISTRICT INDUSTRIES CENTRE, ERNAKULAM. R1 BY ADV. SRI.M.K.CHANDRA MOHANDAS,SC R4 & R5 BY GOVERNMENT PLEADER, SMT.N. SUDHA DEVI THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 10/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC : 7969/07 APPENDIX PETITIONER'S EXHIBITS: EXT.P1 : TRUE COPY OF THE VALUATION CERTIFICATE DATED 4.7.97 OF THE 3RD RESPONDENT'S PROPERTIES. EXT.P2 : TRUE COPY OF THE COMMUNICATION DATED 4.2.03 OF THE 1ST RESPONDENT TO THE 2ND RESPONDENT. EXT.P3 : TRUE COPY OF THE JUDGMENT DATED 17.9.04 IN WPC 40648/03 OF THIS HON'BLE COURT. EXT.P4 : TRUE COPY OF THE JUDGMENT DATED 4.12.06 IN WA NO.2192/04 OF THIS HON'BLE COURT. EXT.P5 : TRUE COPY OF THE REMINDER DATED 15.1.07 ISSUED BY THE 1ST RESPONDENT TO EFFECT RECOVERY FROM THE SALARY OF THE 1ST PETITIONER. EXT.P6 : TRUE COPY OF THE REMINDER DATED 15.1.07 ISSUED BY THE 1ST RESPONDENT TO EFFECT RECOVERY FROM THE SALARY OF THE 2ND PETITIONER. RESPONDENT'S EXHIBIT: ANNEXURE R1(A) : TRUE COPY OF THE NOTICE DATED 23.3.07. /TRUE COPY/ PA TO JUDGE S. SIRI JAGAN, J. ------------------------------------------------- W.P.(C)No. 7969 OF 2007 ------------------------------------------------- Dated this the 10th day of June, 2009 JUDGMENT the respondents are guarantors for certain loan amounts taken by the 3rd respondent from the 1st respondent. The 3rd respondent defaulted payment of the loan amounts. Now the loan amounts are sought to be recovered from the salary of the 1st petitioner, who is a widow, having two daughters. According to the petitioners, the 3rd respondent has immovable properties worth double the dues from him, as evidenced by Ext.P1. It is further submitted that the take home salary of the 1st petitioner is only Rs.3,149/- and after deductions of personal loans, the balance would come to Rs.2,000/- only and the recovery sought for is Rs.3,000/- per month which is contrary to the provisions of Section 60 of the Code of Civil Procedure. The petitioner therefore seeks the following reliefs: “i. issue a writ of certiorari quashing the originals of Ext.P5 and P6 and all further proceedings thereon; ii. Issue a writ of prohibition or any other writ order or direction restraining the respondents 1 and 2 from recovering any amount due on the loan accounts of the 3rd respondent from the petitioners' salary before first proceeding against the immovable WPC : 7969/07 -:2:- properties of the 3rd respondent. iii. Issue a writ of mandamus or any other writ, order or direction directing the 1st respondent to proceed against the immovable properties of the 3rd respondent for realization of the dues on the latter's loan account;” 2. A counter affidavit has been filed by the 1st respondent stating that the 3rd respondent has no immovable properties. But it is admitted that machineries have mortgaged to the 1st respondent. That being so, without first proceeding against the mortgaged properties, the 1st respondent cannot proceed against the guarantors in any way. In any event, the 3rd respondent has not chosen to controvert Ext.P1 or the averment of the petitioner that he has immovable properties. In the above circumstances, I am of opinion that before the petitioner can be proceeded against, the 1st respondent has to first proceed against the mortgaged properties and the properties mentioned in Ext.P1, if the same is available to proceed against under law or other properties of the 3rd respondent, if any. In the above circumstances this Writ Petition is disposed of with a direction to the 1st respondent to the effect that only if after WPC : 7969/07 -:3:- proceeding against the mortgaged properties and properties mentioned in Ext.P1, or other properties of the 3rd respondent, the petitioners shall be proceeded against. S. SIRI JAGAN, JUDGE ttb