IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN FRIDAY, THE 16TH JANUARY 2009 / 26TH POUSHA 1930 WP(C).No. 19758 of 2005(B) -------------------------- PETITIONER(S): --------------- JOSEPH EASO, T.C. 2/2166, ADARSH NAGAR, PATTOM, THIRUVANANTHAPURAM-4. BY ADV. SRI.M.BALAGOVINDAN SRI.SASITH.M.R RESPONDENT(S): --------------- 1. MANAGING DIRECTOR, KERALA FINANCIAL CORPORATION, HEAD OFFICE, VELLAYAMBALAM, THIRUVANANTHAPURAM-695 033. 2. DISTRICT MANAGER, KERALA FINANCIAL CORPORATION, DISTRICT OFFICE, KALOOR, KOCHI. 3. OMANA MATHAI, T.C.2/2166, MINI BHAVAN, ADARSH NAGAR, PATTOM, THIRUVANANTHAPURAM. ADV. SRI.L.MOHANAN, SC, KFC FOR R1 & R2 SRI.P.F.FRANCIS FOR R3 SRI.M.M.SAYED MUHAMMED, SC, KFC THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 16.1.2009 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C).No. 19758/05. APPENDIX PETITIONER(S)' EXHIBITS P1 COPY OF THE DECREE IN O.S.NO.78/2002 OF THE SUB COURT, THIRUVANANTHAPURAM. P2. COPY OF THE SALE DEED. P3. COPY OF THE LAWYER'S NOTICE. P3A. COPY OF THE ACKNOWLEDGEMENT OF ABOVE. P4. COPY OF THE JUDGMENT IN W.P.C.NO.3213/05 OF THIS COURT. P5. COPY OF THE NOTICE DTD.5.4.05 BY R1. P6. COPY OF THE CHEQUE DTD.12.4.05. P7. COPY OF THE COMMUNICATION DTD.23.6.05 BY R1. RESPONDENT(S)' EXHIBITS: R1A. COPY OF THE JUDGMENT IN W.P.C.NO.37363/04 OF THIS COURT. R1B COPY OF THE JUDGMENT IN W.P.(C).No. 5942/05 OF THIS COURT. R1C. COPY OF THE LETTER OF R3 DTD.22.4.05. Sdk+ ///True copy/// P.A. to Judge S.SIRI JAGAN, J. ================== W.P(C).No.19758 of 2005 ================== Dated this the 16th day of January, 2009 J U D G M E N T The 3rd respondent is the surety for a loan amount due to the Kerala Financial Corporation (KFC). The property belonging to the 3rd respondent was mortgaged to the KFC as security for the due repayment of the loan amount. On default in repayment of the loan amounts, the KFC initiated coercive recovery proceedings against the property. In the meanwhile, the petitioner purchased that property from the 3rd respondent allegedly unaware of the mortgage liability. Although the petitioner offered to settle the dues by paying an amount of Rs.8,38,000/- under one time settlement scheme, the same was not accepted by the KFC. The petitioner, therefore, challenged the recovery proceedings seeking the following reliefs: “a. Issue a writ of mandamus or other appropriate writ direction or order directing the respondents to give effect to Ext.P5 without further delay. b. Call for the records leading to the passing of Ext.P7 and quash the same by issuing writ of certiorari or any other appropriate writ direction or order. c. Issue a writ of mandamus or other appropriate writ direction or order directing the 1st respondent not to proceed further on the basis of Ext.P7 till the disposal of the Writ Petition.” 2. Ext.P5 is the letter addressed by the KFC to the petitioner in this regard. Ext.P7 is the letter addressed by the KFC to the petitioner declining to consider his claim for OTS and returning the 2 cheque issued by the petitioner to the KFC. 3. Of course the petitioner has a case that the 3rd respondent had committed fraud on the petitioner in so far as before executing the sale deed and receiving the money due, the encumbrance in the property was not disclosed to the petitioner. 4. However, now the petitioner submits that to save the property from distress sale, he has paid off the entire amounts due. Therefore, he is not seeking any relief against the recovery proceedings as such in so far as the loan account has been closed by the KFC by accepting the amounts paid by the petitioner. His present claim is that the 3rd respondent has already agreed that the title deeds of the properties may be handed over to the petitioner directly. Therefore, he submits that the KFC may be directed to release the title deeds of the property to the petitioner directly. 5. The learned Standing Counsel appearing for the KFC opposes the same. According to the KFC, the petitioner is a stranger to them. As far as they are concerned, their contract is with the 3rd respondent and the borrower. The 3rd respondent had mortgaged the property to the KFC and as such, the title deeds of the property can be released only to the 3rd respondent, is the contention raised. 6. Although notice had been served on the 3rd respondent, the 3rd respondent had not chosen to appear and contest the matter. 3 Therefore, I must assume that the claims of the petitioner as against the 3rd respondent are true and correct. If that be so, the situation is that the 3rd respondent has agreed that the KFC may hand over the title deeds to the petitioner. The 3rd respondent cannot now wriggle out of the same. In the above circumstances, this writ petition is disposed of with the following directions: Respondents 1 and 2 are directed to hand over the title deeds to the 3rd respondent within a period of one month from the date of receipt of a certified copy of this judgment, after issuing a registered notice to the 3rd respondent. If the 3rd respondent cannot either be served with notice or if he does not turn up, it would be open to the 1st respondent to hand over title deeds to the petitioner under proper receipt, on doing which, the KFC would be absolved from all liabilities in respect of the title deeds of the property. Sd/- sdk+ S.SIRI JAGAN, JUDGE ///True copy/// P.A. to Judge 4