Kerala High Court
Fathima Sayed Ali vs Canara Bank on 28 March, 2017
Author: K.Vinod Chandran
Bench: K.Vinod Chandran
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN
MONDAY, THE 16TH DAY OF OCTOBER 2017/24TH ASWINA, 1939
WP(C).No. 22130 of 2017 (M)
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PETITIONER:
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FATHIMA SAYED ALI,
W/O.SHAHUL HAMEED,
DOOR NO.77, THIRUMALAI KOVIL ROAD,
PANPOLI P.O., SHENCOTTAI TALUK,
THIRUNELVELI DISTRICT,
TAMIL NADU - 627 809.
BY ADV. SRI.PRAMOD J.DEV
RESPONDENTS:
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1. CANARA BANK,
MAVELIKKARA BRANCH, MAVELIKKARA,
ALAPPUZHA DISTRICT - 690 101.
2. THE SENIOR MANAGER,
CANARA BANK, MAVELIKKARA BRANCH,
MAVELIKKARA, ALAPPUZHA DISTRICT - 690 101.
R1 BY SRI.PAULY MATHEW MURICKEN, SC
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON 16-10-2017, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
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WP(C).No. 22130 of 2017 (M)
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APPENDIX
PETITIONERS' EXHIBITS:
EXHIBIT P1 : A TRUE COPY OF THE RECEIPT FOR RS.11,00,000/-
DATED 28.03.2017 ISSUED BY THE FIRST RESPONDENT
TO THE PETITIONER.
EXHIBIT P2 : A TRUE COPY OF THE MEMORANDUM OF DEPOSIT OF THE
TITLE DEEDS DATED 12.12.2016 EXECUTED BY THE
HUSBAND OF THE PETITIONER WITH THE FIRST
RESPONDENT BANK.
EXHIBIT P3 : A TRUE COPY OF THE REPRESENTATION
DATED 08.04.2017 SUBMITTED BY THE PETITIONER
BEFORE THE SECOND RESPONDENT.
EXHIBIT P4 : A TRUE COPY OF THE LETTER DATED 11.4.2017 ISSUED
TO THE PETITIONER BY THE SECOND RESPONDENT.
RESPONDENTS' EXHIBITS:
EXHIBIT R1A: A TRUE PHOTOCOPY OF THE VALUATION REPORT
DATED 22.7.2017.
//TRUE COPY//
P.S. TO JUDGE
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K. VINOD CHANDRAN, J
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W.P(C) No. 22130 of 2017-M
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Dated this the 16th day of October, 2017
J U D G M E N T
The petitioner by the above writ petition seeks a direction to the 2nd respondent Bank to go to the Sub Registrar's Office, Panpoli, Tamilnadu for doing such acts as is necessary for releasing the property of the husband of the petitioner from the mortgage created with the 1st respondent. The petitioner submits that the petitioner along with her husband had taken a loan for which a memorandum of deposit of title deed was executed in lieu of the title deed deposited as security which is seen from Ext.P2. The petitioner has cleared the loan but admits that there were other loans pending payment. The Bank having returned the WPC.No. 22130/2017 : 2 : title deed, the Bank has to get release of the encumbrance created by way of registration of memorandum of deposit of title deed; is the contention raised.
2. The learned Counsel for the respondent Bank submits that the memorandum of deposit of title deeds was executed by the husband of the petitioner and the petitioner has no locus standi to seek for release of the title deeds. Further it is submitted that the petitioner and the petitioner's husband had availed various loans from different branches of the respondent Bank. One loan availed from the 2nd respondent Bank was settled, but however, the advances made from Mannar Branch and another loan from the same branch also remain to be satisfied. Reliance is placed on Ext.P4 which indicates that the title deeds were released only on the assurance of the petitioner that the other loans would be settled. As of now, there is an amount of Rs.2.18 crores WPC.No. 22130/2017 : 3 : remaining due and payable by the petitioner and her husband. One property which remains mortgaged to the bank is valued only at Rs.69.15 lakhs. The Bank hence asserts that the documents were released on a mis representation and hence there could be no release of the encumbrance created.
3. This Court is not ready to countenance the contention of the respondent Bank that the petitioner has no locus standi. The petitioner even according to the Bank in its statement, availed of the loan jointly with the petitioner's husband. It was the husband's property which was mortgaged to the Bank. The husband is hospitalised and in such circumstance, the petitioner has approached this Court. The writ petition by the wife is hence maintainable.
4. The further contention is with respect to amounts due of more than Rs.2 crores for which there is again a mortgage created over another property. If at all the Bank is of WPC.No. 22130/2017 : 4 : the opinion that the property mortgaged is insufficient to satisfy the loan, necessarily the Bank would have to take appropriate proceedings to get attachment of the property now released. There is no question of a lien exercised, on the title deeds released, since as of now, the title deeds are not in the custody of the respondent Bank. Whatever be the reason, on satisfaction of a loan the property mortgaged in that loan was released to the borrowers as is evident from Ext.P4. Hence with respect to those properties, the title deeds of which is released by the Bank, they cannot exercise the rights of a mortgagee.
5. In such circumstance, the Bank would have to execute a memorandum for release of title deeds since admittedly, even as per Ext.P4, the loan for which the properties were mortgaged stands satisfied and the title deeds released. The petitioner shall produce the necessary stamp papers and the Bank shall execute the release within a period of two WPC.No. 22130/2017 : 5 : months from the date of receipt of the stamp papers. However, this would not, in any manner affect the right of the Bank to proceed for attachment of the property by an appropriate proceeding.
Writ petition is disposed of. No costs.
Sd/-
K. VINOD CHANDRAN,
JUDGE
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P.A to Judge