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7. When the initial sale had been notified, the first respondent--Bank had divulged certain further details to the petitioner, so as to assert the position that always they were in the driver's seat. According to them, Smt. Rosamma George, Muthupunnackal, Plassanal had taken three loans from the first respondent- Bank as K.MS.E.3/95-96 for Rs. 50,000/-; PLMS E5/95-96 for Rs. 20,000/- and RHE 88/94-95 for Rs. 3,00,000. The properties, referred to in the notice, namely 2 acres and 98 cents in her name and possession, were shown as security, and it was only after executing appropriate Gehans (Nos. G.54/95, G.64/95 and H.39/95) that loans were sanctioned and paid. She had done so along with her husband Sri. M.K. George, who was the transferor and the title was impeccable. Sri. M.K. George is the 4th respondent and Smt. Rosamma George (his wife) is the 6th respondent herein. It has presently come up that some time during 1995 Sri. George had, by a registered document, transferred the properties in favour of his wife, which facilitated her to subject the properties to encumbrance for money received. The loans had been received and the default compelled the first respondent-Bank to resort to coercive proceedings. These were the basic facts, which have to be adverted to, while disposing of this Original Petition.

Thus, it is submitted that if at all the petitioner initially had any claims, so long as they did not put up any such claims of equitable mortgage to them, after Exts.R1(a) to R1 (c), the legal effect was that such claims automatically became subordinate to their rights over the property. Therefore, the petitioner had no enforceable legal rights and any claims become subservient to the rights of the Bank.

11. As defined under Section 2(e) of the Act, a Gehan is a special charge on properties in favour of the lending Bank. By a mere declaration in writing by the borrowers for securing payment of money advanced or to be advanced by way of loan, it will have all the characteristics of a valid mortgage. Security of such loan is ensured by the Act. A loan under Section 9(3) of the Act is recoverable by the Bank concerned in case of default of payment in the same manner as if they are arrears of public revenue due on land. Charge on movable or immovable property is ensured by expressly reserving in favour of the Bank a right of sale without intervention of Court, in case of default. (See Section 10(1) of the Act). It is also provided that notwithstanding anything contained in the Registration Act, or any other law for the time being in force, it shall not be necessary to register any Gehan or mortgage or hypothecation created or executed in favour of the Agricultural Development Bank or a primary bank, provided the Agricultural Development Bank or the primary bank, as the case may be, sends a copy of the declaration or instrument, whereby such documents, including Gehan had created to the Registering Officer of the area concerned within stipulated time. The Registering Officer is expected to file a copy thereof in Book No. 1 kept under the Registration Act and thereupon it is deemed to create an interest in the property. The Bank had complied with these formalities.

14. Because, if that be the case, the notices sent to the Village Officer (Exts.R1 (a) to R1(c)), as envisaged by Section 12 of Act 20 of 1984, did not thereby create any further rights than the bank received from the mortgage arrangement. The rights were defective and unenforceable. The notices, though purported to have been made under Section I2(2) of the Act, were incapable of creating any right because of the inherent defect. Even though the petitioner had overlooked/omitted to make an objection against Exts.R1(a) to R1(c), that did not place them under any special disability, since the 6th respondent's surrender was in respect of properties over which she had no legal rights. The exhibits produced indicated that Rosamma George was party to a Gehan about which notice was published in the Village Office. The petitioner had no relation or transaction with Rosamma George and were not expected to be alerted because of such notice, even though the property had been described. It became inconsequential as far as the petitioner's rights were concerned. Resultantly, situation is that the bank had attempted to enforce the Gehan which was unenforceable. The rituals of publication, sale and consequent confirmation was not sufficient enough to clothe them with any specific advantage to the detriment of the petitioner.

15. Under Section 11 of the Act, every persons who applies for a loan from a primary bank was expected to make a declaration that the property on which Gehan is created as security in the loan transaction is free from encumbrances. Section 11(3) provides that a person who makes a false declaration shall be punishable with imprisonment, Also it is not as if such a contingency of fraud is overlooked by Act 20 of 1984. Section 11(2) of the Act speaks of the remedy. Notwithstanding anything contained in any law for the time being in force, where a declaration given by a loanee is false or defective, the Bank will have a first charge on all other movable and immovable properties of the applicant, and all such properties shall be deemed to have been included in the Gehan, mortgage or hypothecation created or executed by the applicant as security for the loan granted. Theoretically, at least it may be possible for the Bank to proceed against the 4th respondent or the 6th respondent, at their option, in case they want to enforce their claims.