IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 1ST AUGUST 2011 / 10TH SRAVANA 1933 OP(C).No. 249 of 2011(O) ------------------------ O.S.NO.,95/2008 OF SUB COURT, ERNAKULAM OS.494/2010 of SUB COURT,ERNAKULAM .................... PETITIONER: --------------------- JAYASREE, AGED 39 YEARS, W/O. MAHENDRAN, KADAVUKATTU PARAMBU, VADUTHALA DESOM, CHERANELLUR VILLAGE, KANAYANNUR TALUK, KOCHI-682 023. BY ADVS. SRI.N.HARIDAS, SRI.P.N.SASIDHARAN. RESPONDENT(S): ---------------------------- 1. DENSON @ DENY PAUL, AGED ABOUT 38 YEARS, S/O. AUGUSTINE, CHALAVEEDU HOUSE, ELAMAKKARA KARA, EDAPPALLY SOUTH VILLAGE, KANAYANNUR TALUK, KOCHI-682 026, PRESENTLY RESIDING AT HOUSE NO.70/2046, PULLETHUNDI LANE, R.A.NO.5, THRIKKANAR VATTOM DESOM,PACHALAM P.O.,KANAYANNUR TALUK,KOCHI-682 012. 2. M/S. NORTH MALABAR GRAMIN BANK, KALOOR BRANCH, KOCHI-682 017, REPRESENTED BY ITS SENIOR MANAGER. R2 BY ADV. SRI.B.JAYAPARAKASH THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 01/08/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss OPC.NO.249/2011 O APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE AGREEMENT DTD. 21/08/2007 EXECUTED BY THE 1ST RESPONDENT IN FAVOUR OF PETITIONER. P2: COPY OF THE AGREEMENT DTD. 14/11/07 EXECUTED BY THE 1ST RESPONDENT IN FAVOUR OF PETITIONER. P3: COPY OF THE RECEIPT DTD. 22/11/2007 ISSUED BY THE 1ST RESPONDENT. P4: COPY OF THE LAWYER NOTICE DTD. 14/01/2008 ISSUED BY THE PETITIONER TO THE 1ST RESPONDENT. P4(A): COPY OF THE ACK.RECEIPT SIGNED BY THE 1ST RESPONDENT. P5: COPY OF THE PLAINT FILED BY THE PETITIONER AS O.S.NO.95/2008 BEFORE THE 1ST ADDL.SUB COURT, ERNAKULAM. P6: COPY OF THE COUNTER AFFIDAVIT FILED BY IN PETITIONER IN I.A.NO.233/2009 IN O.S.95/2008 OF THE SUB COURT, ERNAKULAM. P7: COPY OF THE PETITION FILED BY THE PETITIONER AS I.A.NO.2469/2009 IN OS.95/2008 OF SUB COURT, ERNAKULAM. P8: COPY OF THE SKETCH OF THE PLAINT SCHEDULE PROPERTY PREPARED BY THE VILLAGE OFFICER, EDAPPALLY SOUTH VILLAGE. P9: COPY OF THE PLAINT FILED BY THE 2ND RESPONDENT AS O.S.NO.494/2010 BEFORE THE SUB COURT, ERNAKULAM. P10: COPY OF THE PETITION FILED BY THE PETITIONER AS I.A.NO.6398/2010 IN O.S.NO.494/2010 OF SUB COURT, ERNAKULAM. P11: COPY OF F.I.R. IN CRIME NO.2239/2010 DTD. 8/12/2010 OF KALAMASSERY POLICE STATION. Kss ..2/- ..2.... OPC.NO.249/2011 O P12: COPY OF NOTICE EXHIBITED IN FRONT OF BUILDING IN THE PLAINT SCHEDULE PROPERTY AT THE INSTANCE OF 2ND RESPONDENT. P13: COPY OF THE PUBLIC NOTICE PUBLISHED ON 4/1/2011 IN THE MALAYALA MANORAMA DAILY AT THE INSTANCE OF THE 2ND RESPONDENT. P14: COPY OF THE LAWYER NOTICE DTD. 5/01/2011 ISSUED BY THE PETITIONER TO THE 2ND RESPONDENT. P14(A):COPY OF THE ACK.RECEIPT OF THE LAWYER NOTICE RECEIVED FROM 2ND RESPONDENT BANK. RESPONDENT'S EXHIBITS: N I L /TRUE COPY/ P.S.TO JUDGE Kss THOMAS P.JOSEPH, J. ==================================== O.P(C) No.249 of 2011 ==================================== Dated this the 01st day of August, 2011 J U D G M E N T Petitioner is the plaintiff in O.S. No.95 of 2008 of the court of learned Additional Sub Judge, Ernakulam, a suit for specific performance of Ext.P1, agreement for sale dated 21.08.2007 said to be executed by the first respondent agreeing to convey right, title and possession of the property to the petitioner subject to the conditions mentioned therein. According to the petitioner he was made to believe that the suit property is 2.500 cents. But later it turned out that extent of the property is only 1.550 cents. However, petitioner wanted to enforce the agreement for sale. First respondent contended that there was no such agreement for sale and instead he had created a document in the form an agreement as security for due repayment of a loan. In the course of the suit petitioner learned that first respondent had availed loan from the second respondent on the security of an equitable mortgage of the said property by delivering the original title deeds and the second respondent has filed O.S. No.494 of 2010 in the court of learned Additional Sub Judge-I, Ernakulam for O.P(C) No.249 of 2011 -: 2 :- recovery of the amount with charge over the property on the strength of that equitable mortgage. Petitioner made an attempt to get himself impleaded as additional defendant in O.S. No.494 of 2010. But that attempt failed as learned Sub Judge dismissed the application for impleadment (I.A. No.6398 of 2010). Now petitioner has deposited the entire amount payable to the second respondent by the first respondent and that amount is kept in suspense account of the second respondent awaiting orders from the court permitting petitioner to discharge the liability of the first respondent. Petitioner is aggrieved since the second respondent has initiated Exts.P12 and P13 proceedings under the Securitization Act for realization of the amount. If in the meantime the property is sold, petitioner will be put to irreparable loss and injury. Learned counsel submitted that petitioner has already paid Rupees Four lakhs by way of advance to the first respondent in his eagerness to get the sale deed executed. Hence this Original Petition. Prayer in this Original Petition is to direct second respondent not to proceed on the basis of Exts.P12 and P13, proceedings, receive the amount from the first respondent as claimed in O.S. No.494 of 2010, directing second respondent to give the original documents to the petitioner and a further direction to the learned Sub Judge to dispose of O.S. No.95 of 2008 within a time frame. O.P(C) No.249 of 2011 -: 3 :- 2. Though first respondent is served through special messenger, he remains absent. I have heard learned counsel for second respondent also. Second respondent has no objection in receiving the entire amount with interest if it is paid by petitioner pursuant to the order of the Court and thus discharging liability of the first respondent. 3. Having heard counsel on both sides it appears to me that the appropriate course is to permit petitioner move appropriate application in O.S. No.95 of 2008, if necessary, seeking impleadment of second respondent also as a party in that suit for a proper adjudication of the dispute and seek permission to pay the amount due to the second respondent and liable to be paid by the first respondent. Question whether the title deeds which the first respondent has handed over to the second respondent to create equitable mortgage could be handed over to the petitioner even on discharging liability of the second respondent or, those documents are to be produced in court has to be decided by the learned Sub Judge at the appropriate stage after hearing all the parties concerned. In view of the direction I propose to issue and since certain amount has already been deposited with the second respondent though in the suspense account, second respondent can be directed to keep further proceedings pursuant to Ext.P12 and P13 in abeyance for a period O.P(C) No.249 of 2011 -: 4 :- of two months from this day. Resultantly, Original Petition is disposed of in the following lines: (a) It is made clear that it is open to the petitioner to seek impleadment of second respondent in O.S. No.95 of 2008 and seek permission of learned Sub Judge for permission to discharge liability of the second respondent flowing from the equitable mortgage created by the first respondent to avoid sale of the property. (b) In case learned Sub Judge grants permission and the entire liability of first respondent to the second respondent in respect of the equitable mortgage is discharged learned Sub Judge may pass appropriate orders as to whether the original documents now in the custody of the second respondent is to be produced before the Sub Judge or as prayed for by the petitioner after hearing all the parties concerned. (c) In the circumstances stated above it is directed that proceedings initiated by the second O.P(C) No.249 of 2011 -: 5 :- respondent based on Exts.P12 and P13 will stand in abeyance for a period of two months from this day. I make it clear that I have not expressed any opinion regarding the merits of the application that petitioner may prefer and the liability of petitioner if any to pay the interest that accrues on the loan account of the first respondent with the second respondent or other relief (reliefs to which petitioner is ultimately entitled in the suit). THOMAS P. JOSEPH, JUDGE. vsv