IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 25877 of 2010(H)
1. RASIYA MOOSA, AGED 28 YEARS,
... Petitioner
Vs
1. STATE BANK OF INDIA REPRESETNED BY
... Respondent
2. A.C.M.SHAUKATH, ANDATHODU CHALLIL HOUSE
3. SABEENA, W/O.A.C.M.SHAUKATH, ANADATHODU
4. FATHIMA ALIAS PATHUMMA,
5. M.M.AMEER, S/O.A.C.MUHAMMED ALI,
6. A.C.SUBAIR, S/O.A.C.MUHAMMED ALI,
For Petitioner :SRI.H.B.SHENOY
For Respondent : No Appearance
The Hon'ble MR. Justice P.R.RAMACHANDRA MENON
Dated :20/08/2010
O R D E R
P.R.RAMACHANDRA MENON, J
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WP(C) NO. 25877 OF 2010
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Dated this the 20th day of August, 2010
JUDGMENT
The petitioner who is the wife of the guarantor is before this Court,
stated as being aggrieved of the course pursued by the respondent Bank
in proceeding against the property over which security interest was
created in respect of a loan extended to the 2nd respondent (the principal
borrower) without proceeding against the said person or the other
guarantors; inspite of the fact that the borrower had already approached
this Court by filing WP(C) 30483/2009 culminating in Ext.P5 judgment,
whereby appropriate relief was extended to him, subject to the satisfaction
of the condition, which however was not complied with.
2. The learned counsel for the petitioner submits that the
husband of the petitioner was also a party to the said proceedings, having
been shown as the 5th respondent in Ext.P5. But since the matter was
finalized at the admission stage, the husband could not enter appearance
and make appropriate submissions. The learned counsel for the petitioner
submits that the husband of the petitioner is presently working abroad and
that the petitioner has been authorized to file the present Writ Petition so
as to meet the immediate requirements; especially in view of the coercive
proceedings.
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3. Mr. K.K. Chandran Pillai, the learned senior counsel for the
Bank submits on instructions that the idea and understanding of the
petitioner that the Bank is resorting to some or other dubious means is not
at all correct or proper. It is true that the borrower who filed the Writ Petition
earlier before this Court leading to Ext.P5 judgment did not honour the
commitment and this being the position, the Bank is proceeding with further
steps for realization of the amounts due from the property of the borrower.
It is also pointed out that the said property belonging to the borrower is
one, where co-ownership rights are there for the wife, mother and brothers
of the borrower who have been arrayed as the respondents 3 to 6 in the
Writ Petition and they have also executed necessary documents in favour
of the Bank with regard to the creation of security interest over the
property. After considering the facts and figures and the limited grievance
of the petitioner, the learned senior counsel for the Bank submits that the
Bank is agreeable to proceed against the property of the borrower/defaulter
at the first instance and if only the income generated therefrom in the public
auction, will the Bank proceed against the property of the petitioner’s
husband.
4. After hearing both the sides, this Court finds that the only relief
now pressed before this Court is for a direction to proceed against the
property of the petitioner’s husband only after proceeding against the
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properties of the borrower/defaulter. The grievance of the petitioner stands
substantially redressed in view of the submissions made on behalf of the
Bank. In the above circumstances, the submission made by the learned
senior counsel for the Bank is recorded and the Writ Petition is disposed of.
However it is made clear that, this will be without prejudice to the rights and
liberties of the respondent Bank to proceed against the property of the
husband of the petitioner, if and when necessitated, by pursuing such
steps from the steps where it stands now.
P.R.RAMACHANDRA MENON
JUDGE
dnc