IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN FRIDAY, THE 11TH JUNE 2010 / 21ST JYAISTHA 1932 WP(C).No. 17354 of 2010(T) -------------------------------------- PETITIONER: ------------------- MARIAMMA ITTIAVIRA, W/O. ITTIAVIRA, AGED 59 YEARS, PUTHANPURAKKAL, KORUTHODU P.O., ERUMELI NORTH VILLAGE, KOTTAYAM DISTRICT. BY ADV. SRI.K.T.SHYAMKUMAR. RESPONDENTS: ------------------------ 1. THE MUNDAKAYAM SERVICE CO-OPERATIVE BANK LTD.NO.K.122, MUNDAKAYAM, REPRESENTED BY ITS SECRETARY. 2. THE SUB REGISTRAR, SUB REGISTRAR'S OFFICE, ERUMELY, KOTTAYAM DISTRICT. 3. MARIYAMMA, W/O. JOSEPH, AGED 73 YEARS, NADOOPPARAMBIL HOUSE, EDAKKUNNAM KARA, KORUTHODU P.O., ERUMELY NORTH VILLAGE, KOTTAYAM DISTRICT, PIN- 686 509. R1 BY ADV. SRI.LIJI.J.VADAKEDOM, R2 BY GOVT. PLEADER SRI. K.C. SANTHOSH KUMAR. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 11/06/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.17354/2010-T: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE SALE DEED NO. 1152/2006 OF ERUMELY SUB REGISTRAR'S OFFICE. EXT.P.2: COPY OF THE PATTA NO.264/96 DTD. 12/03/1996 ISSUED BY THE SPECIAL TAHASILDAR (LA.NO:1), KANJIRAPALLY. EXT.P.3: COPY OF THE BASIC TAX RECEIPT ISSUED BY THE 07/11/2009 BY THE ERUMELI NORTH VILLAGE IN RESPECT OF THE PROPERTY OWNED BY THE PETITIONER. EXT.P.4: COPY OF THE ENCUMBRANCE CERTIFICATE DTD. 31/05/2010 IN RESPECT OF THE PROPERTY OWNED BY THE PETITIONER ISSUED BY THE R.2. EXT.P.5: COPY OF THE GEHAN FORM EXECUTED BY THE R.3. WHICH THE PETITIONER OBTAINED FROM THE R.1. RESPONDENTS' EXHIBITS: EXT.R1.A: COPY OF THE LOAN APPLICATION SUBMITTED BY THE R.3. BEFORE THE BANK. EXT.R1.B: COPY OF THE DECISION OF THE MANAGING COMMITTEE OF THE BANK SANCTIONING LOAN TO THE BANK R.3. //TRUE COPY// P.A. TO JUDGE. Prv. K. SURENDRA MOHAN, J. ------------------------------------------------------------ W.P(C) NO: 17354 OF 2010 T ----------------------------------------------------------- Dated this the 11th June, 2010. JUDGMENT The petitioner is the absolute owner in possession of an extent of 32.94 ares in R.S.No: 416/16 in block No: 30 of Erumely North Village in Kanjirapally Taluk of Kottayam district. The property was purchased by her as per registered sale deed No: 1152/2006 of Erumely sub registry. The property was purchased by the petitioner from the third respondent. The third respondent owned another item of property, an extent of 57.40 ares in survey No: 416/18 in Erumely North village which she had obtained as per Patta No: 264/96 issued by the Special Tahsildar (LA No:1), Kanjirapally. Pursuant to the purchase of the property, the petitioner effected mutation of the revenue records in her name. She has also paid the basic tax in respect of the property as per Ext.P3. Subsequently when the petitioner obtained Ext.P4 encumbrance certificate in respect of the property, it was found that the certificate showed the existence of a mortgage created by the third respondent in respect of the property of the petitioner. The mortgage appears to have been created in favour of the first respondent bank. Therefore, the petitioner made enquiries with WPC 17354/2010 2 the bank and came to know that the petitioner's property had been included in the mortgage created by the third respondent, by mistake. 2. Adv. Liji Vadakkedom appears for the first respondent. A counter affidavit has been filed on behalf of the first respondent. In paragraph 4 of the counter affidavit it has been stated as follows:- “But it is humbly submitted that at the time of executing the Gehan in favour of the Bank a clerical mistake had occurred while entering the details of the property in the Gehan. Without noticing the fact that the 3rd respondent had submitted only one property (57.40 Ares in Sy.No: 416/18 of Erumely North Village) as the security to the Bank and another property having an extent of 32.94 in Sy. No: 416/16 of Erumely North Village also got entered in the schedule of the Gehan. It is humbly submitted that the same is a mistake occurred due to a clerical error. The 1st respondent never had intended to receive the property having the extent of 32.94 in Su.No: 416/16 of Erumely North Village as a security for the loan transaction. Further the Bank had never received the said property of 32.94 ares in 416/16 as a security. The Bank had accepted only the extent of 57.4 Ares in Sy.No: 416/18 of Erumely North Village as a security.” WPC 17354/2010 3 In view of the above statements this writ petition is only to be allowed. 3. Accordingly this writ petition is allowed. It is declared that the property admeasuring 32.94 ares of land comprised in survey No: 416/16 of Erumely North Village obtained by the petitioner as per Ext.P1 sale deed was never included in the Gehan mortgage created by the third respondent in favour of the first respondent bank. In the circumstances of the case there will be no order as to costs. K. SURENDRA MOHAN Judge jj WPC 17354/2010 4