IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C) No. 26827 of 2007(R)
1. K.RAJESH,S/O.P.RAJASEKHARAN,AGED 34,
... Petitioner
Vs
1. THE CATHOLIC SYRIAN BANK LIMITED,
... Respondent
2. LIC HOUSING FINANCE LTD.,
3. E.ABDU,
4. KAMARUNNISA,
For Petitioner :SRI.C.P.MOHAMMED NIAS
For Respondent :SRI.K.ANAND (A.201)
The Hon'ble MR. Justice ANTONY DOMINIC
Dated :27/11/2007
O R D E R
ANTONY DOMINIC, J.
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W.P.(C) NO.26827 OF 2007 R
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Dated this the 27th day of November, 2007
J U D G M E N T
Proceedings initiated against the mortgaged property under
the provisions of the Securitisation and Reconstruction of
Financial Assets and Enforcement of Security Interest Act, 2002
at the instance of the 1st respondent Bank is under challenge.
Petitioner submits that the property originally belonged to
respondents 3 and 4 and it is on the basis of a partition deed
executed on 27/3/81 that they got title over the property. It is
stated that subsequently, respondents 3 and 4 mortgaged the
said property with the 1st respondent Bank using a copy of their
title deed and it was thereafter that the petitioner had purchased
the said property on 29/12/04. Later on two suits were filed by
the Bank as OS 115 and 126/06 before the Sub Court, Calicut
and the plaint in these suits are Exts. P5 and P6. In these suits,
the petitioner is also a party and Exts.P7 and P8 are the written
statements. After settlement of the issues, in the suit, the 1st
respondent Bank initiated proceedings under the Securitisation
and Reconstruction of Financial Assets and Enforcement of
Security Interest Act, 2002 and Ext.P11 is the notice issued
WPC No.26827/2007
: 2 :
under Section 13(2) of the said Act. To this, petitioner has given
Ext.P12 reply and thereafter this writ petition has been filed
challenging the proceedings. Petitioner submits that on the
strength of his valid title, he too has availed of a loan by
depositing his title deeds with the 2nd respondent. According to
the petitioner, the 1st respondent acted illegally in accepting copy
of the title deeds from respondents 3 and 4 and creating
mortgage in respect of his property. It is also argued that when
he raised these valid contentions, the bank adopted a short cut
by resorting to the impugned proceedings.
2. The fact that during the pendency of the suit the Bank
is competent to initiate proceedings under the Securitisation and
Reconstruction of Financial Assets and Enforcement of Security
Interest Act, 2002 cannot be challenged. The only question is
whether, in the peculiar facts of this case, whether Bank had
committed any irregularity in creating mortgage and extending
financial assistance to respondents 3 and 4. In this case,
irrespective of the factual details, it is certain that it is long after
the mortgage was created, the petitioner purchased the property
WPC No.26827/2007
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in 2004. Therefore, at the time when the mortgage was created,
respondents 3 and 4 had valid title over the property and were
fully competent to create mortgage. If that be so, the petitioner
at best can proceed against respondents 3 and 4 and not
challenge the charge created in favour of the Bank or the
proceedings initiated under the Securitisation and Reconstruction
of Financial Assets and Enforcement of Security Interest Act,
2002.
3. Irrespective of this, second prayer of the petitioner is to
direct the Bank to consider the objection raised by the petitioner on
receipt of Section 13(2) notice. It is admitted that in response to
Ext.P11 notice under Section 13(2), petitioner has given Ext.P12
reply. This the Bank needs to deal with and a reply has to be given,
and the Bank shall do, as expeditiously as possible.
Subject to the above writ petition is dismissed. Needless to
say that the observations made herein are only prima facie
findings and will not cause any prejudice to the petitioner in the
suit.
ANTONY DOMINIC, JUDGE
Rp