IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM MONDAY, THE 3RD JANUARY 2011 / 13TH POUSHA 1932 OP (DRT).No. 1339 of 2010(O) ---------------------------- DRC.2090/2009 of DEBT RECOVERY TRIBUNAL, ERNAKULAM .................... PETITIONER:- ------------------ VELLANKALLUR FINANCE(P) LTD., VELLANKALLUR P.O., THRISSUR DISTRICT,REP.BY ITS PRESENT MANAGING DIRECTOR SAJEEVAN, AGED 51, S/O.PARAMESWARAN NAIR, PATTATHIL HOUSE, EDAKULAM, IRINJALAKUDA, THRISSUR. BY ADV. SRI.G.SREEKUMAR (CHELUR) SRI.K.RAVI (PARIYARATH) RESPONDENTS:- ---------------------- 1. THE DEBT RECOVERY TRIBUNAL, KERALA AND LAKSHWADEEP, 8TH FLOOR, K S H B BUILDING, PANAMPILLY NAGAR, ERNAKULAM, PIN 682 036. 2. THE RECOVERY OFFICER,OFFICE OF THE RECOVERY OFFICER DEBT RECOVERY TRIBUNAL,KERALA AND LAKSHWADEEP, 8TH FLOOR, K S H B BUILDING, PANAMPILLY NAGAR, ERNAKULAM, PIN 682 036. 3. THE ORIENTAL BANK OF COMMERCE, M.G.ROAD BRANCH, ERNAKULAM, REP.BY ITS BRANCH MANAGER. 4. M/S.RICHARD AND RYAN ENTERPRISES, LUIZ ESTATE, K D PLOT K O, KALAMASSERY, REP.BY ITS MANAGING PARTNER, GRIL ROY JOHN LUIZ, PIN 683104. 5. SISILY XAVIER, W/O.KOOLIYADAN XAVIER, MALIYEKKAL, VELLANKALLUR DESOM VADAKUMKARA VILLAGE MUKUNDAPURAM TALUK, PIN 680001. 6. XAVIER, S/O.MALIYEKAL KOOLIYADAN POULOSE VELLANKALLUR DESOM, VADAKUMKARA VILLAGE, MUKUNDAPURAM TALUK, PIN 680001. (PTO) -: 2 :- 7. JOHN, S/O.THEETHAYIL POULOSE @ PAILIKUTTY, VELLANKALLUR DESOM, VADAKUMKARA VILLAGE, MUKUNDAPURAM TALUK, PIN 680001. 8. JOSEPH, PANIKULAM, S/O.PALLIKATTIL RAPPAI, VELLANKALLUR DESOM, VADAKUMKARA VILLAGE, MUKUNDAPURAM TALUK, PIN 680001. BY THIS OP (DEBT RECOVERY TRIBUNAL) HAVING COME UP FOR ADMISSION ON 03/01/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: C.K.ABDUL REHIM, J. = = = = = = = = = = = = = = OP(DRT).No.1339 of 2010-O. = = = = = = = = = = = = = = Dated this the 3rd January, 2011. J U D G M E N T Proclamation of sale issued by the Recovery Officer, as per Ext.P7, is under challenge in this writ petition. The proceedings was initiated by the 2nd respondent, in execution of a Recovery Certificate issued in favour of the 3rd respondent Bank. The loan in question was availed by the 4th respondent. According to the petitioner, the property which is proclaimed for sale under Ext.P7, was mortgaged to them, by virtue of a registered mortgage deed executed by respondents 5 and 6, and the right of the petitioner as mortgagee of the property is still existing. It is the allegation of the petitioner that while the mortgage created by the petitioner was existing, respondents 5 and 6 had transferred the property in favour of the 4th respondent and the 4th respondent had created a further equitable mortgage in favour of the 3rd respondent. OP(DRT).No.1339 of 2010-O. 2 Therefore, contention of the petitioner is that, the mortgage created in favour of the 3rd respondent Bank is not valid and the sale will not affect the rights of the petitioner on the property as a mortgagee. It is the contention that the prior mortgage which came into existence will survive and the 3rd respondent is not entitled to execute the recovery certificate, in which charge is created on the property in question since the petitioner has got valid right on the property as a mortgagee. 2. The question basically pertains to claims raised by the petitioner on a property which is proclaimed for sale, which is charged by virtue of a recovery certificate issued by the Tribunal. It is for the 2nd respondent Recovery Officer to have proper adjudication on such claim if the petitioner is approaching that authority with a claim petition, as per the provisions contained under the relevant Statute. This writ petition filed without resorting to any such remedy, could not be entertained. It is noticed that, by OP(DRT).No.1339 of 2010-O. 3 virtue of Ext.P7 proclamation, the proposed sale is scheduled on today. Needless to say that if any sale takes place on the basis of Ext.P7, is left open to the petitioner to challenge the same before the 2nd respondent. 3. Under the above circumstance, the writ petition is dismissed without prejudice to the rights of the petitioner to approach the 2nd respondent seeking appropriate reliefs. All the contentions raised herein are left open for agitation. C.K.ABDUL REHIM, (Judge) Kvs/-