IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM TUESDAY, THE 7TH JUNE 2011 / 17TH JYAISHTA 1933 WP(C).No. 899 of 2011(J) ------------------------ PETITIONER(S): --------------- SIRAJUDEEN, S/O.NAINAR, T.C.11/640, NANTHANCODE, KAWADIAR VILLAGE, THIRUVANANTHAPURAM. BY ADV. SRI.LATHEESH SEBASTIAN RESPONDENT(S): --------------- 1. ELLIAS KUNJU, S/O.JAMAL MUHAMMED, URANKUZHY HOUSE, DAIVAPURA, PERINGAMALA, THENNUR VILLAGE, NEDUMANGADU – 695 563 2. SEENA BEEGAM, D/O.ELLIAS KUNJU, URANKUZHY HOUSE, DAIVAPURA, PERINGAMALA, THENNUR VILLAGE, NEDUMANGADU – 695 563 3. NAZEER, S/O.ELLIAS KUNJU, URANKUZHY HOUSE, DAIVAPURA, PERINGAMALA, THENNUR VILLAGE, NEDUMANGADU – 695 563 4. ANJANA, D/O.ELLIAS KUNJU, URANKUZHY HOUSE, DAIVAPURA, PERINGAMALA, THENNUR VILLAGE, NEDUMANGADU 695 563 5. NIZARUDIN, S/O.ALIYAR KUNJU, S.R.MANZIL, VIP JUNCTION, NEDUMANGADU P.O., THIRUVANANTHAPURAM DISTRICT 695 541 6. NADEERA BEEVI, W/O.NIZARUDIN, S.R.MANZIL, VIP JUNCTION, NEDUMANGADU P.O., THIRUVANANTHAPURAM DISTRICT 695 541 7. PUNJAB NATIONAL BANK HOUSING FINANCE LTD REPRESENTED BY ITS MANAGER, 4TH FLOOR CAPITAL TOWERS, STATUE, TRIVANDRUM 695 001 ADV. SRI.R.S.MOHANAN NAIR FOR R-7 SRI.T.A.UNNIKRISHNAN FOR R1 SRI.K.SATHEESH KUMAR FOR R1 SRI.J.JAYAKUMAR FOR R5 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 07/06/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 899 of 2011(J) APPENDIX PETITIONER'S EXHIBITS : EXT.P1 : COPY OF THE 13(2) NOTICE OF THE 7TH RESPONDENT EXT.P2: COPY OF THE PLAINT IN O.S.NO.125/2011 OF MUNSIFF COURT, NEDUMANGADU EXT.P3: COPY OF THE WRITTEN STATEMENT OF THE 1ST RESPONDENT EXT.P4: COOPY OF THE WRITTEN STATEMENT OF THE 7TH RESPONDENT RESPONDENT'S EXHIBITS: EXT.R7(A) : COPY OF THE DEMAND NOTICE DTD.6.11.2008 EXT.R7(B) : COPY OF THE STATEMENT OF ACCOUNT OF 5TH AND 6TH RESPONDENTS //TRUE COPY// P.A TO JUDGE C.K.ABDUL REHIM, J --------------------------------------- W.P(C) No.899 of 2011-J ---------------------------------------- Dated this the 7th day of June, 2011. J U D G M E N T The petitioner had purchased two items of immovable properties by virtue of sale deed Nos.1795/2009 and 1796/2009 of the Sub Register Office, Nedumangadu. The properties in question were purchased from respondents 1 to 4, on payment of valuable consideration. Respondents 5 and 6 were the prior owners of the property, who had transferred the same to respondents 1 to 4. It was subsequently came to the notice of the petitioner that respondents 5 and 6 had created mortgage with respect to the properties in question, for the purpose of securing a loan availed by them from the 7th respondent. Consequent to default committed, proceedings under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI Act) was initiated by the 7th respondent and coercive steps were being pursued for dispossession and sale of the property in question. W.P(C) No.899 of 2011-J 2 Under the above mentioned circumstances, the petitioner had filed a civil suit before the Munsiff Court, Nedumangadu as O.S.No.125/2010 seeking a decree of mandatory injunction against respondents 1 to 4 to remit the amount due under the Bank loan account. In this writ petition the petitioner is seeking relief to restrain the 7th respondent from proceeding against the properties in question, by accepting remittance of the amounts due from the petitioner. The petitioner inter alia seeks permission to recover the amounts payable to the 7th respondent from respondents 1 to 6. 2. When the writ petition came up for consideration, further steps of recovery was stayed, subject to condition of the petitioner remitting a sum of Rs.2,50,000/- within three weeks from 31.1.2011. Subsequently, the interim order was extended insisting upon further payment of different amounts. Such amounts were directed to be deposited in a suspense account by the 7th respondent until further orders. It is now reported that a total sum of Rs.5 lakhs had already W.P(C) No.899 of 2011-J 3 been remitted in compliance of the interim orders. The petitioner expressed willingness to pay off the balance if any due in the loan account, within a short time. On that premise the petitioner is seeking direction against the 7th respondent to close the loan account and to return the title deeds and other documents pertaining to the property, to the petitioner. 3. Heard; counsel appearing for respondents 5 and 6 as well as counsel appearing for the 1st respondent. Both of them are agreeing that the properties in question were already transferred to the petitioner, after receiving valuable consideration. But the contention is that the transfers in question were made after revealing the liability due to the 7th respondent. 4. In the counter affidavit filed by the 7th respondent, it is contended that the petitioner has no locus standi to challenge the recovery proceedings. It is further stated that the offer made by the petitioner for payment of the balance amount could not be accepted without the consent of the W.P(C) No.899 of 2011-J 4 borrowers or without a direction issued from this court. It is alleged that purpose of filing this writ petition is only to delay the recovery steps. However, the allegation of the petitioner that the 7th respondent had refused to accept the offer made for payment, is refuted. 5. Considering the rival contentions as stated above, I am of the view that, there is no impediment in directing the 7th respondent to accept payment of the balance amounts outstanding in the loan account, from the petitioner. If the petitioner remits the entire balance within a time to be stipulated, the loan account can be directed to be closed. In view of the fact that the respondents 1 to 6 are conceding about the transfers, I am of the view that there is no hurdle in directing the 7th respondent to release the title documents to the petitioner, on closing of the loan account. However, rights if any available to the petitioner to realise the amounts from respondents 1 to 6 is left open for agitation in appropriate proceedings before appropriate court. W.P(C) No.899 of 2011-J 5 6. In the result, the writ petition is disposed of directing the petitioner to remit the entire balance outstanding in the loan account in question to the 7th respondent, within two weeks from the date of receipt of a copy of this judgment. The 7th respondent is directed to return the title documents relating to the properties to the petitioner, on settlement of payment and on closing of the loan account. It is left open to the petitioner to resort to appropriate proceedings for realising the amounts paid towards the loan account, from respondents 1 to 6, if such claim is sustainable under law. 7. Needless to say that the 7th respondent can appropriate the deposits already made, which is kept in the suspense account, against liability under the loan account in question, and the petitioner need to pay only the balance amounts. C.K.ABDUL REHIM JUDGE ab