IN THE HIGH COURT OF KERALA AT ERNAKULAM
OP(C).No. 1020 of 2010(O)
1. K.SIVADASAN,
... Petitioner
Vs
1. INDIAN BANK,REPRESENTED BY BRANCH
... Respondent
For Petitioner :SRI.V.V.ASOKAN
For Respondent : No Appearance
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :10/12/2010
O R D E R
THOMAS P JOSEPH, J.
----------------------------------------
O.P(C).No.1020 of 2010
---------------------------------------
Dated this 10th day of December, 2010
JUDGMENT
Plaintiff in O.S.No.134 of 2010 of the court of learned
Additional Munsiff, Palakkd is the petitioner before me
challenging Ext.P7, order as confirmed by the learned District
Judge in Ext.P8, judgment. Petitioner sued for a declaration of
non liability for the suit property, prohibitory injunction to
restrain respondent from initiating coercive steps to recover
amount from the suit property and for a mandatory injunction to
direct the respondent to return all signed, blank papers to the
petitioner. Case is that petitioner had been one of the guarantors
to the respondent for a loan availed by the principal debtor
according to the petitioner, to the tune of `.4,00,000/- on the
security of equitable mortgage of the suit property created by
delivery of certified copy of title deeds of petitioner. It is the
case of petitioner that on principal debtor paying off the entire
amount due, respondent returned the documents to the petitioner
thereby discharging equitable mortgage over the property. While
so, petitioner received Ext.P1, notice threatening legal action in
case the amount allegedly due to the respondent is not paid.
O.P(C).No.1020 of 2010
: 2 :
That notice was replied by Ext.P2. Apprehending action
petitioner filed the suit as above stated and I.A.No.390 of 2010
for an order of temporary injunction to restrain respondent from
taking any action against the suit property “in the guise of
enforcing the mortgage” till the disposal of the suit. That
application was opposed by respondent contending that liability
of principal debtor is continuing and hence that of the guarantors
including the petitioner still existed, principal debtor availed a
loan of `.11,25,000/- for which petitioner was one of the
guarantors and as security for repayment of the said amount
petitioner created equitable mortgage over the suit property. It
is also the contention of respondent that the manager of the
branch concerned in collusion with petitioner and the principal
debtor returned the documents. According to the respondent, it
is entitled to initiate action for realisation of the amount due by
proceeding against the property as well. Respondent also
challenged jurisdiction of the civil court to entertain the suit.
Learned Munsiff found that remedy of petitioner is to prove
redemption of mortgage as claimed by him before the Debt
Recovery Tribunal, Ernakulam (for short, “the DRT”) before
which respondent has initiated action by filing O.A.No.277 of
O.P(C).No.1020 of 2010
: 3 :
2010. Learned Munsiff also observed that jurisdiction of the civil
court is ousted. The application for injunction was dismissed.
Petitioner challenged that order in appeal. Learned District
Judge prima facie found that liability of petitioner still subsisted
and confirmed dismissal of I.A.No.390 of 2010. Hence this
original petition. Learned counsel for petitioner contends that
the very fact that petitioner is admittedly in custody of the
documents which were handed over to the respondent for
creation of equitable mortgage itself indicated that the mortgage
was discharged. In that view of the matter court below was not
correct in refusing injunction. Appellate court has decided the
caseon merit at the interlocutory stage and almost non suited the
petition. Respondent contended that remedy of petitioner is only
to defend O.A.No.277 of 2010 pending in the DRT where it is
open to the petitioner to raise all his contention.
2. It is seen from Ext.P8, judgment that learned District
Judge has gone into the merit of the case and decided question of
liability of petitioner. I am persuaded to think, learned District
Judge need not have gone to that extent at this stage. Hence that
finding of learned District Judge has to be set aside and I do so.
O.P(C).No.1020 of 2010
: 4 :
3. Then the next question is whether petitioner is
entitled to get injunction as prayed for. Respondent is entitled to
initiate legal action for the amount it claims to be due to it from
the principal debtor and consequently, petitioner as a guarantor.
There can be no injunction against institution or perusing any
proceeding in a court subordinate to that from which injunction is
sought. The DRT is not a forum which is subordinate to the
court of Munsiff. Even otherwise respondent is entitled to initiate
legal action and the proper course open to the petitioner is to
answer such action. Learned Munsiff has taken that view which I
do not find reason to disagree with. Question whether petitioner
is still liable to the respondent is a matter which is now pending
consideration before the DRT in O.A.No.277 of 2010 where is it
open to the petitioner to raise all his contention as are available
to him. But, I do not find reason to interfere with the order of
learned Munsiff refusing to grant injunction.
Resultantly with the above observations this petition s
dismissed.
(THOMAS P JOSEPH, JUDGE)
Sbna/-