Kerala High Court
Niyas P.P vs The State Bank Of Travancore on 22 July, 2014
Author: K.Vinod Chandran
Bench: K.Vinod Chandran
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN
TUESDAY, THE 22ND DAY OF JULY 2014/31ST ASHADHA, 1936
WP(C).No. 7843 of 2014 (E)
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PETITIONER:
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NIYAS P.P,
'ANAR', KANNOTHUMCHAL ROAD,
THANA P.O.,
KANNUR-670 012.
BY ADVS.SRI.K.R.AVINASH (KUNNATH)
SRI.ABDUL RAOOF PALLIPATH
SRI.C.H.ABDUL RASAK
RESPONDENTS:
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1. THE STATE BANK OF TRAVANCORE, KANNUR MAIN BRANCH,
PLATINUM CENTRE, FORT ROAD, KANNUR-670 012.
2. THE STATE BANK OF TRAVANCORE,
HEAD OFFICE, VAZHUTHACAUD, POOJAPPURA ROAD,
JAGATHY, TRIVANDRUM-695 014.
*ADDL.R3 IMPLEADED:
R3. SRI.ABDUL AZEEZ.A.K.,
S/O.AHAMED HAJI, AGED 49 YEARS,
RESIDING AT KHADEEJA MANZIL,
CHALAD PO, KANNUR - 670 016.
(*ADDL.R3 IS IMPLEADED AS PER ORDER DATED 22/07/2014
IN I.A.NO.6535/2014)
R1 & R2 BY SENIOR ADVOCATE SRI.T.SETHUMADHAVAN
ADVOCATES SRI.PUSHPARAJAN KODOTH
SRI.K.JAYESH MOHANKUMAR
ADDL.R3 BY ADVOCATE SRI.T.K.SASINDRAN
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 22-07-2014 ALONG WITH WPC.NO.11541/2014, THE COURT
ON THE SAME DAY DELIVERED THE FOLLOWING:
Kss
WP(C).No. 7843 of 2014 (E)
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APPENDIX
PETITIONER(S)' EXHIBITS:
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EXHIBIT P1: TRUE COPY OF THE LETTER DATED 5.4.11 ISSUED BY
RESPONDENT BANK.
EXHIBIT P2: TRUE COPY OF THE SAID LETTER DATED 27.7.11 ISSUED BY
RESPONDENT BANK.
EXHIBIT P3: TRUE COPY OF THE CASH PAYMENT RECEIPT DATED 11.4.13.
EXHIBIT P4: TRUE COPY OF THE LETTER THROUGH E -MAIL BEFORE THE
BANKING OMBUDSMAN.
EXHIBIT P5: TRUE COPY OF THE ORDER DATED 17.1.02014 RECEIVED
THROUGH EMAIL BY THE BANKING OMBUDSMAN.
EXHIBIT P6: TRUE COPY OF THE TENDER CUM AUCTION NOTICE DATED
20/03/2014.
RESPONDENT(S)' EXHIBITS:
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/TRUE COPY/
P.S.TOJUDGE
Kss
K.Vinod Chandran, J.
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W.P.(C).Nos.7843 of 2014-E & 11541 of 2014-P
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Dated this the 22nd day of July, 2014
JUDGMENT
The two writ petitions are filed, one by the original borrower and the other by the guarantor.
2. Niyas.P.P., the petitioner in W.P.(C).No.7843 of 2014, had availed of three facilities, from the respondent-Bank; being two agricultural loans and one "Suvidha" loan. With respect to the agricultural loans, the said Niyas had mortgaged three different properties and had also deposited the title deeds of the said properties to create mortgage. With respect to the Suvidha loan, the property of Abdul Azeez A.K., the petitioner in W.P.(C) No.11541 of 2014, was mortgaged. Admittedly all the aforesaid loans fell in default.
3. The respondent-Bank allowed release of one of the properties mortgaged as against the agricultural loans, on the undertaking that the petitioner would settle the said loans by selling the said property. The two agricultural loans were, thus, settled. However, on seeking release of title deeds of the other WP(C).Nos.7843/2014 & - 2 - 11541/2014 two properties, mortgaged towards the agricultural loan, the respondent-Bank contended that the Bank is exercising a general lien over such property, especially in the circumstance of the Suvidha loan being in arrears. It is also submitted by the learned counsel for the respondent-Bank that though there is an equitable mortgage created, of the property of Abdul Azeez, the said Abdul Azeez has taken three other loans on the strength of the very same security, being the property mortgaged, in the Suvidha loan availed by Niyas. In such circumstance, the learned counsel for the respondent-Bank would contend that the release of the title deeds sought for is not viable, unless the Suvidha loan is settled.
4. With respect to the arrears on the Suvidha loan, the learned counsel appearing for the respondent-Bank would submit that there was arrears of around Rupees Thirty Lakhs. The same was subject of a compromise and Niyas was directed to deposit an amount of Rs.20,50,000/- as one time settlement. Rs.18,99,250/- admittedly has been remitted and what remains is an amount of Rs.1,50,750/-. The petitioner contends that if one of the properties is released, he would settle the balance amount of Rs.1,50,750/- within a period of one month from the date of WP(C).Nos.7843/2014 & - 3 - 11541/2014 release. The petitioner would also contend that such a prayer is sought for, only on the intending purchaser insisting for perusal of the original title deed and related documents.
5. Definitely, there can be no dispute that the title deeds were deposited with the respondent-Bank for securing the loans availed of by the petitioner. In such circumstance, if the purchaser is brought to the Bank within a period of one month from today and on deposit of Rs.1,50,750/- [Rupees one lakh, fifty thousand and seven hundred and fifty], necessarily the release of the title deeds would be possible. If Niyas so turns up, with the purchaser and remits the said amount in the respondent-Bank, there will be no difficulty in the release of the two title deeds with respect to the two properties, mortgaged as against the two agricultural loans, which admittedly is satisfied. The general lien exercised over the said properties, with respect to the Suvidha loan, would also be extinguished on satisfaction of the said loan. It is made clear that even, on the satisfaction of the Suvidha loan, the release of the properties mortgaged by Abdul Azeez, would not be possible in the context of the said Abdul Azeez having availed of three other facilities on the security of the said property. WP(C).Nos.7843/2014 & - 4 - 11541/2014
6. W.P.(C).No.7843 of 2014 is disposed of, with the above directions, granting the petitioner therein, Niyas, one month time to undertake the exercise directed by this Court.
7. With respect to W.P.(C).No.11541 of 2014, the prayer is to re-fix the upset price of the property which has been notified for sale against the Suvidha loan availed by Niyas. That relief, does not survive, in the context of the orders passed in W.P. (C) No.7843 of 2014. Hence, W.P.(C) No.11541 of 2014 is dismissed, however, reserving the right of the petitioner therein, Abdul Azeez, to raise his contentions with respect to the price of the property, at the appropriate time when such cause of action arises.
Ordered accordingly. Parties are left to suffer their respective costs.
Sd/-
K.Vinod Chandran, Judge vku.
( true copy )