High Court Kerala High Court

Sri. Sivanandan vs Recovery Officer on 11 June, 2009

Kerala High Court
Sri. Sivanandan vs Recovery Officer on 11 June, 2009
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

WP(C).No. 9829 of 2007(T)


1. SRI. SIVANANDAN,
                      ...  Petitioner
2. SRI. MOHAN,

                        Vs



1. RECOVERY OFFICER,
                       ...       Respondent

2. MANAGER,

3. M.M.SUBRAMANYAN,

4. RAMASWAMY,

                For Petitioner  :SRI.M.RAMESH CHANDER

                For Respondent  : No Appearance

The Hon'ble MR. Justice S.SIRI JAGAN

 Dated :11/06/2009

 O R D E R
                                S. Siri Jagan, J.
                =-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-=
                        W. P (C) No. 9829 of 2007
                =-=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=
                    Dated this, the 11th June, 2009.

                              J U D G M E N T

The petitioners are guarantors for repayment of loan amounts

taken by respondents 3 and 4 from the 2nd respondent. The 2nd

respondent initiated proceedings before the Debt Recovery Tribunal

for recovery of the amounts due from respondents 3 and 4. A decree

was passed in favour of the Bank, pursuant to which the 1st

respondent Recovery Officer of the Tribunal initiated proceedings for

sale of the property belonging to the petitioners. The petitioners

challenge that sale on the ground that no proceedings have been

initiated against the properties of respondents 3 and 4 for recovery

before proceeding against the properties belonging to the petitioners.

The petitioners therefore seek the following reliefs:

“(i) Issue a writ of certiorari or any other appropriate writ,
order or direction calling for the originals relating to Ext. P4 and
quash the same;

(ii) issue a writ of mandamus directing the respondents to
proceed with sale of 19 = cents in R.S.2297/Thycaud village and
10 cents of land in R.S.2387/2-4 and R.S.2388/3-2 of Thycaud
village and 15 cents of land in T.C.16/782 before proceeding with
the petitioners’ property.”

2. The petitioners could not obtain a stay in this writ petition.

This Court only directed that sale, if any, would be subject to the

result of the writ petition. If the sale has taken place, the remedy of

the petitioners lies in proceeding against respondents 3 and 4 for

recovery of the amounts realised from the petitioners by sale of their

properties. By the sale third parties have become entitled to right

over the properties and they are not before me. Therefore, I cannot

now pass orders, which would affect their legally obtained rights. The

petitioners have also not been able to satisfy this Court that the sale is

W.P.C. No. 9829/07. -: 2 :-

vitiated by any irregularities. That being so, I am not inclined to go

into the question as to whether the 1st respondent should first

proceed against respondents 3 and 4 or the petitioners in so far as the

liability is joint and several. Therefore, without prejudice to the right

of the petitioners to seek appropriate reliefs against respondents 3

and 4 in appropriate proceedings , this writ petition is dismissed.

Sd/- S. Siri Jagan, Judge.

Tds/