High Court of KeralaWP(C)/22921/2009disposed of

Sabitha Azeez & Another v. General Manager, Canara Bank & Others

2015-07-15Honourable Mr. Justice A.Muhamed Mustaque6 pages

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT:

THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE WEDNESDAY, THE 15TH DAY OF JULY 2015/24TH ASHADHA, 1937 PETITIONER(S):

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1. SABITHA AZEEZ, AGED 42 YEARS, W/O.AZEEZ, SOUHRADA, VELANKONAM AVANAVANCHERI VILLAGE, ATTINGAL, THIRUVANANTHAPURAM DISTRICT.

2. NISHA, W/O.BASHEER, MANIYANVILA, BUNGLOW, VAKKOM VILLAGE, VAKKOM, THIRUVANANTHAPURAM DISTRICT.

BY ADVS.SRI.P.K.MUHAMMED SRI.S.VIJI RESPONDENT(S):

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1. GENERAL MANAGER, CANARA BANK, CIRCLE OFFICE, M.G.ROAD.

THIRUVANANTHAPURAM.

2. BRANCH MANAGER, CANARA BANK, CANTONMENT, M.G.ROAD.

THIRUVANANTHAPURAM.

3. INTEGRATED HOUSING DEVELOPERS LIMITED, (VALLEY VIEW GARDENS), POTHUJANAM LANE, KUMARAPURAM. THIRUVANANTHAPURAM., REPRESENTED BY ITS MANAGER-683565.

4. MAHESH, S/O.MANOHARAN, K.P.N.SADANAM, T.C.3/134, PARUTHIPPARA.

ULLOOR VILLAGE, THIRUVANANTHAPURAM-695011.

5. R.PREMCHAND, S/O.V.P.B.NAIR, MASTER MARINER, RESIDING AT 'SETHU', POOJAPPURA, THIRUMALA VILLAGE, THIRUVANANTHAPURAM-695012.

6. REMA B.NAIR, S/O.K.P.RAMACHANDRAN NAIR, RESIDING AT 'SETHU', POOJAPPURA, THIRUMALA VILLAGE, THIRUVANANTHAPURAM-695012.

.....2/-

..2..

7. R.MOHANDAS, S/O.K.P.RAMACHANDRAN NAIR, RESIDING AT 'SETHU', POOJAPPURA, THIRUMALA VILLAGE, THIRUVANANTHAPURAM-695012.

R1 & R2 BY ADV. SRI.P.GOPINATH MENON, SC R4 BY ADV. SRI.D.KISHORE THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 15-07-2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

APPENDIX PETITIONER(S)' EXHIBITS ------------------------------------- EXT.P1.

TRUE COPY OF THE SALE DEED NO.4593/06 ISSUED IN FAVOUR OF 1ST PETITIONER AND HER HUSBAND DATED 30/10/2006 EXT.P2.

TRUE COPY OF THE SALE DEED NO.4594/06 ISSUED IN FAVOUR OF 2ND PETITIONER AND HER HUSBAND DATED 30/10/2006 EXT.P3.

TRUE COPY OF THE ENCOUMBRANCE CERTIFICATE ISSUED IN FAVOUR OF THE 1ST PETITIONER EXT.P4.

TRUE COPY OF THE ENCOUMBRANCE CERTIFICATE ISSUED IN FAVOUR OF THE 2ND PETITIONER DATED 8/10/2007 EXT.P5.

TRUE COPY OF LETTER IDSUED BY THE R2 TO 1ST PETITIONER AND HER HUSBAND DATED 27/12/2007 EXT.P6.

TRUE COPY OF LETTER ISSUED BY THE R2 TO 2ND PETITIONER AND HER HUSBAND DATED 27/12/2007 EXT.P7.

TRUE COPY OF THE REPRESENTATION SUBMITTED BY PETITIONERS BEFORE THE R1 DATED 20/8/2008 EXT.P8.

TRUE COPY OF THE JUDGMENT IN WPC.30550/2008 DATED 21/10/2008 EXT.P9.

TRUE COPY OF THE NOTICE ISSUED TO M.A.AZEEZ FROM DISTRICT REGISTRAR'S OFFICE.

EXT.P10.

TRUE COPY OF THE NOTICE ISSUED TO BASHEER FROM DISTRICT REGISTRAR'S OFFICE.

EXT.P11.

TRUE COPY OF THE ACKNOWLEDGEMENT OF PAYMENT OF MONEY IN FAVOUR OF AZEEZ EXT.P12.

TRUE COPY OF THE ACKNOWLEDGEMENT OF PAYMENT IN FAVOUR OF BASHEER EXT.P13.

TRUE COPY OF THE LAND TAX RECEIPT IN FAVOUR OF 1ST PETITIONER AND AZEEZ EXT.P14.

TRUE COPY OF THE LAND TAX RECEIPT IN FAVOUR OF 2ND PETITIONER AND BASHEER ....2/-

..2..

EXT.P15.

TRUE COPY OF THE POSSESSION NOTICE ISSUED BY CANARA BANK IN HINDU DAILY.

RESPONDENT(S)' EXHIBITS --------------------------------------- NIL.

/ TRUE COPY / P.S. TO JUDGE

A.MUHAMED MUSTAQUE, J.

***************************************************************************** W.P.(C) No.22921 of 2009 ****************************************************************************** Dated this the 15th day of July, 2015

JUDGMENT

Petitioners claim to be the bona fide purchasers from respondents 3 to 7. The petitioners challenge SARFAESI proceedings initiated against the property purchased by the petitioners from respondents 3 to 7. Admittedly, the property was mortgaged to the first respondent Bank on 7.7.2005. The petitioner appears to have purchased the property only subsequently. The documents produced before this Court would show that the purchase was in the year 2006. The petitioner, in fact, approached this Court in an earlier occasion by filing W.P.(C) No.30550/2008. This Court directed the Bank to consider the petitioners request. It appears that the Bank considered the petitioners request and rejected. Ext.P5 is the communication of the order to the petitioners' request.

The petitioner purchased the property which is subject to a mortgage. The petitioner cannot claim a better right than the mortgagor or mortgagee. The right of priority available under law is

W.P.(C) No.22921 of 2009 2 in favour of the Bank. Therefore, the Bank is justified in proceeding against the property of the petitioners. There is no merit in this writ petition. Accordingly, this writ petition is dismissed. However, if the petitioners want to redeem the entire liability, they are free to do so. On payment of the entire liability, the property shall be released to the petitioners. SdA.MUHAMED MUSTAQUE, JUDGE ln