IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 18057 of 2009(B)
1. C.NARAYANAN, CHERIYIL HOUSE, ELAMKULAM,
... Petitioner
2. SUBRAMANIAN A,
Vs
1. THE URBAN CO-OPERATIVE BANK NO. 1758,
... Respondent
2. THE DEVELOPMENT OFFICER/AUTHORISED
3. P. RAJAN, KIZHAKKE POOZHIKUTH
For Petitioner :SRI.BRIJESH MOHAN
For Respondent :SRI.R.RAJESH KORMATH
The Hon'ble MR. Justice C.K.ABDUL REHIM
Dated :19/11/2009
O R D E R
C.K.ABDUL REHIM, J.
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W.P.(C).No.18057 OF 2009
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Dated this the 19th day of November, 2009
J U D G M E N T
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1. Challenge in this writ petition is against Ext.P9 notice
issued by respondents 1 and 2 under Section 13(4) of the
Securitisation and Reconstruction of Financial Assets and
Enforcement of Security Interest Act, 2002 (SARFAESI Act).
Petitioners are inter alia seeking declaration to the effect that
they are having first charge over the property covered under
Ext.P9 and further to declare that the respondents 1 and 2 are
not entitled to proceed against that property. The petitioners
are not the borrowers. They claim right over the property by
virtue of Ext.P2 and P4 decrees passed by the Sub Court,
Manjeri in O.S.No:139/03 and in O.S.No:102/03. Both the suits
are filed by the petitioners against the 3rd respondent herein,
who is the borrower as far as the loan transaction of respondents
1 & 2 is concerned. According to the petitioners even before
passing Ext.P2 and P4 decrees the petitioners there existed
interim orders of attachment against the property, which is now
sought to be proceeded against, as evidenced from Ext.P5 and
P6. Contention of the petitioners based on Ext.P2, P4, P5 and P6
W.P.(C).18057/09-B 2
is that there is a charge created with respect to the property
which is now proceeded against under the SARFAESI Act.
Therefore they claim that the proceedings initiated by the
respondents 1 and 2 cannot be allowed to be continued, without
discharging the rights which is said to have been accrued on the
property in favour of the petitioners by virtue of the above said
decrees as well as orders of attachment.
2. The respondents 1 and 2 in their counter affidavit
stated that the 3rd respondent had availed a loan from the 1st
respondent as early as on 29.8.2000 by creating equitable
mortgage with respect to the property, as evidenced from Ext.R1
(a)- Memorandum of mortgage by deposit of title deed. It is
further stated that Ext.R1(b) is the title deed pertaining to the 3rd
respondent and the original of which is in deposit with the Bank.
3. Going by Ext.P5 and P6 interim orders of attachment
it is noticed that those orders are issued respectively on
9.12.2003 and on 27.8.2003. Ext.P2 and P4 decrees are issued
thereafter. From the above facts it is clear that the mortgage
was created much prior to the date of attachment. On the date
of creation of the equitable mortgage the petitioners could not
claim any charge over the property nor they could effectively
claim any right or interest which has been created on the
property as on that date. Therefore I am of the opinion that the
W.P.(C).18057/09-B 3
claim of the petitioners that the charge created based on the
interim orders of attachment or by virtue of the decrees, can be
enforced against respondents 1 and 2 seems to be highly
misconceived in view of the fact that they have got a clear
charge of mortgage created much prior to those orders. Hence
the challenge raised by the petitioners against the proceedings
initiated at the instance of respondents 1 and 2 is totally
unsustainable. Therefore the writ petition deserves no merit and
the same is liable to be dismissed.
4. However it is made clear that dismissal of this writ
petition will not prejudice rights if any available to the
petitioners to proceed against any receipt of the sale in excess of
the amount due to the Bank, under the SARFAESI Act by
invoking appropriate remedies before appropriate forum.
C.K.ABDUL REHIM, JUDGE.
okb