IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 9829 of 2007(T)
1. SRI. SIVANANDAN,
... Petitioner
2. SRI. MOHAN,
Vs
1. RECOVERY OFFICER,
... Respondent
2. MANAGER,
3. M.M.SUBRAMANYAN,
4. RAMASWAMY,
For Petitioner :SRI.M.RAMESH CHANDER
For Respondent : No Appearance
The Hon'ble MR. Justice S.SIRI JAGAN
Dated :11/06/2009
O R D E R
S. Siri Jagan, J.
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W. P (C) No. 9829 of 2007
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Dated this, the 11th June, 2009.
J U D G M E N T
The petitioners are guarantors for repayment of loan amounts
taken by respondents 3 and 4 from the 2nd respondent. The 2nd
respondent initiated proceedings before the Debt Recovery Tribunal
for recovery of the amounts due from respondents 3 and 4. A decree
was passed in favour of the Bank, pursuant to which the 1st
respondent Recovery Officer of the Tribunal initiated proceedings for
sale of the property belonging to the petitioners. The petitioners
challenge that sale on the ground that no proceedings have been
initiated against the properties of respondents 3 and 4 for recovery
before proceeding against the properties belonging to the petitioners.
The petitioners therefore seek the following reliefs:
“(i) Issue a writ of certiorari or any other appropriate writ,
order or direction calling for the originals relating to Ext. P4 and
quash the same;
(ii) issue a writ of mandamus directing the respondents to
proceed with sale of 19 = cents in R.S.2297/Thycaud village and
10 cents of land in R.S.2387/2-4 and R.S.2388/3-2 of Thycaud
village and 15 cents of land in T.C.16/782 before proceeding with
the petitioners’ property.”
2. The petitioners could not obtain a stay in this writ petition.
This Court only directed that sale, if any, would be subject to the
result of the writ petition. If the sale has taken place, the remedy of
the petitioners lies in proceeding against respondents 3 and 4 for
recovery of the amounts realised from the petitioners by sale of their
properties. By the sale third parties have become entitled to right
over the properties and they are not before me. Therefore, I cannot
now pass orders, which would affect their legally obtained rights. The
petitioners have also not been able to satisfy this Court that the sale is
W.P.C. No. 9829/07. -: 2 :-
vitiated by any irregularities. That being so, I am not inclined to go
into the question as to whether the 1st respondent should first
proceed against respondents 3 and 4 or the petitioners in so far as the
liability is joint and several. Therefore, without prejudice to the right
of the petitioners to seek appropriate reliefs against respondents 3
and 4 in appropriate proceedings , this writ petition is dismissed.
Sd/- S. Siri Jagan, Judge.
Tds/