The petitioner is before this Court challenging the sale proceedings initiated by the 1st respondent-Bank, against the property mortgaged to the 1st respondent. The petitioner had availed of three loans, each of Rupees Five Lakhs, and on constant default being committed thereon, the arrears have come to Rs.17,88,874/-. The property mortgaged, was purchased by the petitioner by sale deed No.644/1992 dated 05.03.1992 of S.R.O., Mulanthuruthy and the property is situated in Survey No.678/5 of Mulanthuruthy Village. Consequent to re-survey proceedings, the petitioner's property was assigned R.S.No.422/10 in Block No.23 and it is submitted that on 07.06.2011 the re-survey number has been changed to 421/2010. Hence, a representation was filed before the Revenue Divisional Officer and there being no action taken, the petitioner was before this Court, in which Exhibit P7 judgment was passed. Exhibit P7 was passed directing the Revenue Divisional Officer to consider the complaint filed before WP(C).No.9416 of 2012-B - 2 - the authority. It is contended by the learned counsel for the petitioner that the R.D.O. has not complied with the directions in the judgment and the petitioner is before this Court in contempt proceedings.
2. It is not the case of the petitioner that she will be put to difficulties if loan amounts are cleared unless and until the R.D.O. effects necessary changes in the revenue records. It is the contention of the petitioner that if in the revenue records the re-survey number is changed, the petitioner would be able to take further loans mortgaging the very same property and settle the liability towards the Bank.
3. The learned counsel for the respondent-Bank, however, would contend that these are mere dilatory tactics and the Bank cannot permit further mortgage of the properties already mortgaged to it. In fact there was a proposal for renewal of the said loans; but that also did not crystallize due to the inaction of the petitioner. In the present circumstance, it is submitted that the respondent-Bank is not willing to give any further finance to the petitioner or renew the loan accounts, for the reason that there is WP(C).No.9416 of 2012-B - 3 - consistent default in the loan account and interest is mounting.
4. Obviously the dispute with respect to survey number seems to be genuine. Exhibit P1 sale deed shows the survey number of the property purchased by the petitioner as 678/5. In Exhibits P2 and P2(a), tax receipts, the survey number shown is 422/10, of the very same property. The Village Officer, Mulanthuruthy by Exhibit P5 dated 7.6.2011 issued a certificate that the tax for 10.72 Ares of property lying in old Survey No.678/5, has been accepted under re-survey No.422/10; and on a verification of the land the same is seen to be included in re-survey No.421/10. The petitioner had also, on the strength of the said certificate, applied to the R.D.O. by Exhibit P6 dated 7.6.2011 seeking cancellation of the mutation earlier done as per TR 323/2006 to re-survey the lands and effect mutation in re-survey No.421/10. The petitioner was also before this Court, in which proceeding Exhibit P7 judgment was passed, directing the R.D.O. to consider the complaint filed by the petitioner. It is the petitioner's submission that the R.D.O. has not complied with the judgment and the petitioner has filed a contempt proceeding WP(C).No.9416 of 2012-B - 4 - before this Court, which is pending consideration.
5. Exhibit P7 was dated 19.08.2011. However, even before passing of the judgment Exhibit P7, it is seen that by Exhibit P8 an Office Note was generated, wherein it was confirmed that there was a wrong mutation done in re-survey No.422/10 and the petitioner's property, on inspection, is found to be in re-survey No.421/10. Based on the report, on 12.07.2011 the mutation done as TR 323/2006 was cancelled by the R.D.O. What remained was a mutation to be effected in the actual re-survey number. That was considered by the R.D.O. after Exhibit P7 judgment in Exhibit P9. In Exhibit P9 it is noticed that there was an application by one another person to retain the puramboke land when Transfer of Registry is done in the new re-survey number. After hearing both parties and after an examination of the documents, it was opined that it was necessary to conduct a survey with reference to the survey records to measure the properties and determine and fix boundaries, to which end, Re-survey Superintendent of Ernakulam was authorized. According to the petitioner, Exhibit P9 has given rise to the contempt proceedings. However, it is not clear as to WP(C).No.9416 of 2012-B - 5 - what was done by the re-survey authorities after Exhibit P9.
6. It is also pertinent that the petitioner has not chosen to challenge Exhibit P9 in the present proceedings and the only challenge is to the sale proceedings initiated by the respondent-Bank. The Bank, however, seems to be unfaced with the dispute in the re-survey number assigned and is willing to proceed with the sale of the properties as such. In the said circumstance, the sale proceedings cannot be stalled till the mistake in re-survey number is rectified. If the Bank is willing to go ahead with the sale despite the mistake, it is not for this Court to refrain the Bank from doing so; nor can the petitioner seek the sale proceedings to be kept in abeyance till the petitioner resolves the mistake in re-survey number.
7. Having gone through the records, the writ petition is seen filed challenging proceedings initiated by the respondent-Bank against the mortgaged properties, in which proceedings landed property is sought to be sold. The petitioner's contention that if the re-survey proceedings end in her favour, she would be able to obtain loans from other financial institutions WP(C).No.9416 of 2012-B - 6 - mortgaging the very same property cannot be countenanced, since the said property is already mortgaged to the respondent-Bank. It is to be noticed that the re-survey number or a wrong allotment of re-survey number does not in any manner create a cloud on the title of the land. The petitioner obviously is the title holder and there are no rival claimants to that. The petitioner willingly had mortgaged her property for availing a loan from the respondent-Bank. In fact the petitioner, in the guise of getting the revenue records corrected, has successfully prevented the Bank from recovering the amounts due to it. The writ petition, hence, is devoid of merit and the same is liable to be dismissed.
8. However, if the petitioner deposits an amount of Rs.2,00,000/- (Rupees Two Lakhs) on or before 30.11.2013, the sale proceedings shall be kept in abeyance. On production of a certified copy of this judgment within two weeks of receipt of the same, the 1st respondent-Bank shall quantify the amounts due under the various transactions of the petitioner and inform her in writing the amounts due as on 15.11.2013. The respondent-Bank shall grant nine equal monthly instalments for the payment of the WP(C).No.9416 of 2012-B - 7 - balance dues, starting from 01.01.2014 and the further instalments falling due on the 1st of every succeeding month. On the petitioner making default in paying one instalment, the recovery steps initiated shall revive and continue. On the 9th instalment being satisfied, the respondent-Bank shall issue a statement of the interest accrued from 15.11.2013, which shall be satisfied by the petitioner on or before 01st of the next succeeding month. On the petitioner satisfying the entire arrears, the recovery proceedings shall be unenforceable.
Writ Petition is hence closed with the above direction. No costs.
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K.Vinod Chandran Judge.
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( true copy )