IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN THURSDAY, THE 26TH MARCH 2009 / 5TH CHAITHRA 1931 WP(C).No. 7795 of 2009(T) ------------------------- PETITIONER(S): --------------- SHOLLY @ VARGESE SHOLLY, S/O.XAVIER, AGED 39 YEARS,EECHARANGHATTU HOUSE,CHANGHAMPUZHA ROAD,EDAPPALLY.PO, ERNAKULAM. BY ADV. SRI.K.R.VINOD RESPONDENT(S): --------------- 1. AUGUSTINE MICHAEL,S/O.MICHAEL, VELUTHEDATHU VEEDU, PUTHUVYPU VILLAGE, MURIKKUMPADOM DESOM,VYPEEN, ERNAKULAM. 2. THE MANAGER,ING VYSA BANK,IST FLOOR, SHEMA BUILDING, M.G.ROAD,RAVIPURAM. 3. THE DISTRICT COLLECTOR,ERNAKULAM DIST. 4. THE TAHSILDAR,KANAYANNOOR TALUK, ERNAKULAM. 5. THE VILLAGE OFFICER,EDAPPALLY NORTH VILLAGE. R1 BY ADV. SRI.BIMAL PRASAD R2 BY SRI.R.S.KALKURA R3 TO R5 BY GOVT. PLEADER SRI.I.V.PRAMOD THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 26/03/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX IN WPC.7795/09 PETITIONER'S EXHIBITS: EXT.P1: TRUE COPY OF THE SALE AGREEMENT EXECUTED IN BETWEEN THE PETITIONER AND THE 1ST RESPONDENT. EXT.P2: THE COPY OF THE DECREE I O.S.NO.715/07 DATED 18.7.08 OF THE SUB COURT, ERNAKULAM. EXT.P3: THE COPY OF THE CHELAN NO.T.63/08 DATED 14.8.2008 EVIDENCING THE DEPOSIT OF rS.5,40,000/- TOWARDS THE BALANCE SALE CONSIDERATION. EXT.P4:THE COPY OF THE I.A.NO.7216/08 FILED BEFORE THE SUB COURT, ERNAKULAM. EXT.P5: THE COPY OF THE EVICTION NOTICE ISSUED BY THE 2ND REPSONDENT DATED 5.3.2009. /TRUE COPY/ THOTTATHIL B.RADHAKRISHNAN, J. ------------------------------------------- W.P(C).No.7795 OF 2009 ------------------------------------------- Dated this the 26th day of March, 2009 JUDGMENT 1. The first respondent availed a loan from the second respondent. Thereafter, on the strength of an agreement for sale, the petitioner sued the first respondent and obtained a decree for specific performance from O.S.715/07 of the Sub Court, Ernakulam. In pursuance of that decree, the petitioner deposited the balance sale consideration. That amount is lying in deposit with the civil court. The petitioner appears to have a case that he had paid an advance amount of Rupees Four Lakhs to the first respondent. 2. On account of default in repayment of the loan availed by the first respondent from the second respondent, action under the SARFAESI Act was initiated and that gives rise to this writ petition. WPC.7795/09 Page numbers 3. On 13.3.2009, this Court issued an interim order, interdicting the release of funds lying in deposit in O.S.715/07 and directing that the petitioner should not be dispossessed if he deposits an amount of Rupees Three Lakhs with the bank. Such amount has been deposited. The first respondent appears through counsel and states that he does not have any objection to the amount lying in O.S.715/07 of the Sub Court being paid off to the bank. He has the right to say so because he is the one entitled to that amount being the part of the sale consideration. But even with that adjustment, there will be a further outstanding of more than Rs.1,35,000/- for settlement of the transaction with the second respondent. 4. Taking all the aforesaid into consideration, this writ petition is ordered as follows: (i) On an application by the second respondent with a copy of this judgment, the Sub Court, Ernakulam will release to the second respondent unconditionally the entire amounts lying in deposit in O.S.715/07. WPC.7795/09 Page numbers (ii) The first respondent or the petitioner may pay to the bank the remaining amount of Rs.1,35,000/- and accruals thereon within a period of 45 days from today. (iii) Upon receipt of the amount as aforesaid, the bank will issue a re-conciliation and satisfaction statement of the entire account, taking into consideration the amounts paid in terms of the interim order dated 13.3.2009 also. Such statement shall be issued to the petitioner and to the first respondent. (iv) If it is the petitioner who pays the balance amount, this judgment will not stand in the way of him suing the first respondent for recovery of such amount, apart from any amount that he has already paid into the loan account in terms of the interim order or otherwise, subject of course to the terms of the contract between the petitioner and the first respondent that led to the institution of O.S.715/07. WPC.7795/09 Page numbers (v) On receipt of the entire fund, the bank will deposit the documents with the Sub Court, Ernakulam in O.S.715/07 and it will then stand discharged of its obligations in that regard. (vi) The Sub Court, Ernakulam, while give effect to the directions contained in the decree for specific performance, will take care of all the aforesaid matters and release the prior title deeds also to the petitioner on execution of the deed of sale following the decree. Sd/- THOTTATHIL B.RADHAKRISHNAN, Judge. kkb.27/3.