IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C) No. 10836 of 2008(M)
1. M/S.OIKOCREDIT ECUMENICAL DEVELOPMENT
... Petitioner
Vs
1. BANK OF BARODA, REPRESENTED BY ITS
... Respondent
2. S.V.RAMABHADRAN, AUTHORISED OFFICER,
3. BRANCH MANAGER, BANK OF BARODA,
4. NIRMALGRAM VANITHA DIARY CENTRAL SOCIETY
For Petitioner :DR.GEORGE ABRAHAM
For Respondent : No Appearance
The Hon'ble MR. Justice ANTONY DOMINIC
Dated :04/04/2008
O R D E R
ANTONY DOMINIC, J.
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W.P.(C) NO. 10836 OF 2008 M
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Dated this the 4th day of April, 2008
J U D G M E N T
Petitioner claims to have extended financial assistance to the 4th
respondent. It is stated that utilising the funds advanced by them, the 4th
respondent had acquired movable properties. Petitioner also is referring to
Ext.P2 loan agreement and Ext.P3 agreement pledging the movable
properties. It is now contended before me that respondents 1 to 3, to
whom also the 4th respondent owes substantial amounts have initiated
proceedings under Securitisation and Reconstruction of Financial Assets
and Enforcement of Security Interest Act, 2002 and the Bank has already
taken possession of the factory and other mortgaged properties.
Petitioner submits that in the process, the Bank is attempting to sell
movable items that are mortgaged to them. It is on that premise, the writ
petition has been filed in which in essence what the petitioner submits is
that the properties mortgaged by them should be excluded from further
action that the Bank proposes to do.
2. On behalf of respondents 1 to 3, it is submitted that the entire
movable and immovable properties of the 4th respondent are under
WPC 10836/08
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mortgage to respondents 1 to 3. According to them, it is on the strength
of the mortgage so executed, they have taken action resulting in the
possession itself being taken over. Counsel for the petitioner submits that
all that is sought to be excluded from the sale to be conducted by
respondents 1 to 3 is those movable items which are mortgaged to them.
3. While on the one hand the Bank is asserting its rights over the
entire property and is also contending that the 4th respondent could not
have mortgaged any of the items without their consent, the petitioner is
asserting claim over certain parts of the movable properties.
4. Prima facie, a reading of Exts. P2 and P3 also gives the
impression that what has been mortgaged was the existing movable items.
Therefore, in order to accept the case of the petitioner it requires to be
established by them that there are certain items of movable properties
which were acquired by utilising their funds and those items of movable
properties are covered by the mortgage that the 4th respondent has
executed in favour of respondents 1 to 3. These are question of fact
which are to be disputed before civil court. In this writ petition, this court
will not be in a position to adjudicate all these issues. Therefore, I do not
think the writ petition is the remedy that is available to the petitioner. Writ
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petition is dismissed.
Counsel for the petitioner submits that it may not be necessary for
the Bank to dispose of the entire assets to realise their liabilities. This
certainly is a matter for the Bank to consider and the petitioner has
already moved the Bank and the Bank shall consider this aspect and take a
decision thereof.
ANTONY DOMINIC,JUDGE.
Rp