High Court Kerala High Court

Janaky vs The State Bank Of India on 13 March, 2008

Kerala High Court
Janaky vs The State Bank Of India on 13 March, 2008
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

WP(C) No. 5955 of 2008(H)


1. JANAKY,AGED 66,W/O.PATTATH SUBRAMANIAN
                      ...  Petitioner

                        Vs



1. THE STATE BANK OF INDIA,
                       ...       Respondent

2. THE BRANCH MANAGER,

3. THE DISTRICT COLLECTOR,

4. KRISHNAN, S/O. SUBRAMANIAN,ADICHILI

                For Petitioner  :SRI.G.SREEKUMAR (CHELUR)

                For Respondent  :SRI.K.K.CHANDRAN PILLAI

The Hon'ble MR. Justice ANTONY DOMINIC

 Dated :13/03/2008

 O R D E R
                        ANTONY DOMINIC, J.

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                   W.P.(C) No. 5955 OF 2008 - H
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              Dated this the 13th day of March, 2008


                           J U D G M E N T

The relief sought for in this writ petition is not to proceed

against Ext. P1 property on the basis of Exts. P3 and P5.

2. According to the petitioner, a contiguous plot of 11

cents belongs to the petitioner and her son, the 4th respondent in

this writ petition. It is stated that out of the said 11 cents the

petitioner owns 4 cents and the 4th respondent owns 7 cents.

Mortgaging the 7 cents of property that he owns, the 4th respondent

availed of a housing loan from the respondent bank. Default was

committed and decree was obtained by the bank which is Ext. R1(a)

and the decree also includes the house that was constructed

availing of the loan.

3. The local authority has assessed the building in the

name of the 4th respondent. Though that was subsequently

changed into the name of the petitioner, at the instance of the bank,

W.P.(C) No. 5955 OF 2008

– 2 –

the panchayat cancelled the change and restored the assessment in

the name of the 4th respondent himself.

4. The bank proceeded under the Securitisation and

Reconstruction of Financial Assets and Enforcement of Security

Interest Act, 2002 and after obtaining an order under Section 14 of

the Act, the bank published Ext. R1(e) sale notice in January, 2008.

At that stage, petitioner filed a suit, O.S. No. 320/07 before the

Munsiff’s Court, Chalakkudy in which an order of interim injunction

was obtained and that was got vacated by the bank. CMA filed has

also been dismissed. Still later the petitioner filed O.S. No. 498/07

before the Sub Court, Irinjalakkuda for fixation of the boundary. It

is stated that the suit is pending and that the application for

injunction restraining the bank from proceeding against the

building is also pending. While so, this writ petition has been filed

seeking the reliefs mentioned earlier.

5. In my view, it is not permissible for the petitioner to resort

to parallel proceedings. As already noticed, raising the contention

that she is not covered by the provisions under the Act and seeking

fixation of the boundary of the property by demarcating with the

W.P.(C) No. 5955 OF 2008

– 3 –

property of the petitioner and that of the property of the 4th

respondent she has already moved a suit which is pending. Rightly

she has also moved an application for injunction. Therefore, it is for

the civil court to consider the said application made by the

petitioner and to decide as to whether the petitioner has made out a

prima facie case for restraining the bank from proceeding further

with Ext. R1(e) sale notice.

Therefore, leaving it open to the petitioner to pursue the

matter before the Civil Court, this writ petition is disposed of.

ANTONY DOMINIC
JUDGE
jan/-