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Kerala High Court

C.Rajamohan vs The Indian Bank on 14 August, 2008

Author: Thottathil B.Radhakrishnan

Bench: Thottathil B.Radhakrishnan

       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

WP(C).No. 24578 of 2008(A)


1. C.RAJAMOHAN, AGED 70, S/O.N.CHELLAPPAN
                      ...  Petitioner

                        Vs



1. THE INDIAN BANK, BALARAMAPURAM BRANCH,
                       ...       Respondent

2. THE HON'BLE DEBT RECOVERY TRIBUNAL,

3. THE RECOVERY OFFICER, DEBT RECOVERY

4. K.S.GOVINDAN NAIR, DEVI NIVAS,

5. B.SREELATHA, KANMONI, PALKULANGARA,

                For Petitioner  :SRI.P.S.RAMESH KUMAR

                For Respondent  : No Appearance

The Hon'ble MR. Justice THOTTATHIL B.RADHAKRISHNAN

 Dated :14/08/2008

 O R D E R
             THOTTATHIL B. RADHAKRISHNAN, J.
             ---------------------------------------------
                 W.P.(C).NO.24578 OF 2008-A
             ----------------------------------------------
              Dated this the 14th day of August, 2008.

                             JUDGMENT

Heard the learned counsel for the petitioner and Adv.S. Easwaran on behalf of the first respondent. Notice to other respondents are dispensed with preserving their right to move for review of this judgment, if aggrieved.

2. Respondents 4 and 5 availed certain facility from the first respondent. They provided collateral security for that. On default, proceedings were initiated under the R.D.B. Act after an earlier suit by the bank was decreed. That has now reached the stage of sale.

3. It appears that the petitioner and respondents 4 and 5 are relatives and the petitioner is assigned a portion of the mortgaged property. There are litigations between the petitioner or his wife, on the one hand and respondents 4 and  WPC.24578/08 .

5, on the other, before the civil court.

4. The limited plea of the petitioner is that those properties which formed the collateral security and are not part of those assigned to the petitioner may be first proceeded against and the recovery officer may be directed to proceed against the properties assigned to the petitioner only after the sale of the other properties.

4. The petitioner is only an assignee of a portion of the equity of redemption. The quality of his claim may not therefore run counter to the rights of respondents 4 and 5 on the holding over which the mortgage was created. Therefore, though the petitioner may be unsuccessful in sustaining any claim before the Tribunal or the recovery officer, it could be considered by the recovery officer on equitable considerations, as to whether the request of the petitioner that sale proceedings may be first held by selling the properties which are not assigned to him. This is entirely a  WPC.24578/08 .

matter for the recovery officer to consider in the course of putting the properties for sale.

Under such circumstances this writ petition is ordered directing that any request in the aforesaid matter, if placed by the petitioner before the recovery officer, would be considered in accordance with law and decision will be taken accordingly, before proceeding with the sale, provided the petitioner makes such request within a period of two weeks from now. The recovery officer will ensure that consideration of such request is expedited since the bank has to ultimately to get the money.

THOTTATHIL B. RADHAKRISHNAN, JUDGE.

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