The petitioners have approached this Court with the following prayers;
“i) Issue a writ of mandamus or any other writ, order or direction directing the respondents to lift the attachment of properties situated in Re Survey No.18/4/1 having an extent of 22.48 ares and 4.20 area in Re Survey No.153/1 of Karthikappally Village forthwith.
ii) Issue a writ of mandamus or any other writ order or direction directing the respondents to consider Ext.P5 and P6 representations in accordance with law within a time frame.
Iii) Issue a writ of mandamus or any other writ, order or direction directing the respondents 1 and 2 to furnish the details of loan amount due from the petitioners and the value of the property mortgaged.”
2. The learned counsel for the petitioners submits that 'three' loans were availed by the petitioners from the respondent Bank, on the strength of different extents of properties. The 1st loan to the tune of `25,00,000/-, is a subject matter for consideration before the DRT, Ernakulam as O.A. No.249/2012, where no property has been offered as security, but for creating hypothication over the stock. In respect of the 2nd loan of `5,00,000/- and the 3rd loan of `20,00,000/- different properties have been offered as security. In view of the coercive steps taken by the respondent Bank, the petitioner was constrained to approach this Court by filing WP(C) No.7417 of 2012 and Writ Appeal Nos.857 & 858 of 2012. As per Annexure R1(a) & (b) judgments in WP(C) No.7417 of 2012 and Writ Appeal Nos.857 & 858 of 2012, the petitioner has been permitted to wipe off the liability by way of '16' equal monthly instalments. The learned counsel for the petitioners submits that the petitioner has satisfied the entire amount in respect of the loan of `5,00,000/- and the said account has been closed. In respect of the loan of `20,00,000/-, out of 16 instalments, the petitioner has cleared 13 instalments and only 3 instalments are remaining, which involved only a sum of `5,29,991.99/- as stated by the respondents in their statement. The learned counsel for the petitioner also points out that value of the property has been assessed by the respondent Bank itself as about `31,00,000/- in the year 2012, as discernible from Ext.P3. The value of the property as on 23.01.2012 is `45.11 lakhs, as conceded by the Bank in Paragraph 2 of their statement. There is absolutely no case for the respondents that the value of the property has been deteriorated in any manner. The liability has been liquidated by the petitioners quite substantially, by closing one loan account and effecting 13 out of 16 instalments in respect of the other loan, pursuant to Ext.R1(a) (b) judgment. Despite the course and events as above, the property belonging to the petitioner comprised in Re-Survey No.18/4/1 having a extent of 22.48 ares and 4.20 ares in Re- Survey No.153/1 of Karthikappally Village were attached by moving the machinery under the R.R. Act, which made the petitioners to approach this Court by filing this writ petition. The learned counsel for the petitioners also submits that, the representations preferred by way of Exts.P5 & P6 before Bank and the Revenue authorities did not invoke any positive response.
3. The learned counsel for the respondent Bank submits that the 'total outstanding liability' including the one which is pending consideration before the DRT is nearly `53,25,374/- as on 18.10.2014. The learned counsel further submits that, by virtue of the Mandate under Section 171 of the Contract Act, the course and proceedings pursued by the Bank are not liable to be assailed under any circumstances. The learned counsel makes a reference to Paragraph 'six' of the statement filed by the respondent Bank, categorically conceding that the attachment effected by the Revenue authorities is not at the instance of the respondent Bank. The said paragraph reads as follows;
“It is submitted with respect that Bank had made requisition for RR action for recovery of the amounts outstanding in above loan accounts as per Requisition dated 05.01.2012. Though the Bank has not directed the RR authorities to attach the properties situated in Sy.No.18/4/1 and 153/1 admeasuring 22.48 ares and 4.20 ares respectively in Kerthikapally Village, as per the provision of the Kerala Revenue Recovery Act, RR Authorities can proceed with attachment of any movable and immovable properties of the defaulters as part of the RR action. It is submitted with respect that attachment need not be confined to mortgaged properties alone and that it is within the authority and discretion of the RR Authorities to proceed against such properties of the defaulters found necessary for realization of the dues. Petitioners are not entitled to any relief in the Writ Petition as they have failed to comply with the conditions contained in Annexure R1(a) Judgment as modified by Annexure R1(b) Judgment passed by the Division Bench of this Hon'ble Court. The other contentions raised in the Writ Petition are also without any bonafides. This statement is filed without prejudice to the right of the Respondent Bank to file a detailed Counter affidavit/further statement if found necessary by this Hon'ble Court.”
The learned counsel for the Bank points out that Annexure R1(a)& (b) are in respect of one loan and similar benefits was obtained by the petitioner with respect of the other loan of `5,00,000/-.
4. The learned Government Pleader appearing for the 3rd and 4th respondents submits that, the properties have been attached by the concerned Tahsildar, in view of the fact that the machinery under the R.R. Act has been set in motion, on the basis of requisition made by the respondent Bank. This Court does not find any fault, lapse or irregularity in the proceedings pursued by the Tahsildar. But the question is whether the attachment should be continued, if it was not so required by the requisitioning authority and further when the outstanding liability has been substantially scaled down by the petitioner, pursuant to Annexure R1(a)&(b) judgments.
5. During the course of hearing, it is brought to the notice of this Court by the learned counsel appearing for the Bank that, in Exts.P5 & P6 representations preferred before the Bank and the Revenue authorities respectively, the petitioners have stated that they are ready to give proper 'undertaking' that the petitioners will not misuse the liberty to be granted and that the loan will be closed by selling the aforesaid property. It is stated that genuine buyers have already come for purchasing the property, which however has not become fruitful because of the attachment, adding that they are ready to complete the deal, if the attachment is withdrawn.
6. The said submission is recorded.
7. The learned counsel for the petitioners submits that the petitioners are ready to take the prospective purchaser to the doors of the Bank, to give effect to the sale of the property and to have the loan account closed by pumping the funds to be procured/satisfied by the prospective purchasers through the account with the respondent Bank.
8. In the said circumstances, no further orders are called for but for ordering that the attachment effected over the properties situated in Re-Survey No.18/4/1 having an extent of 22.48 ares and 4.20 ares in Re-Survey No.153/1 of Karthikappally Village, will stand lifted. Clearance shall be given at the earliest, at any rate, within 10 days from the date of production of a copy of this judgment along with a copy of this writ petition before the 3rd respondent.
It is open for the petitioners to approach the Bank by way of a representation after proving the bonafides as above, and it will be for the Bank to extend benefits, if any, by way of reduction of interest or such other reliefs, to the appropriate extent.
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P.R. RAMACHANDRA MENON, JUDGE.
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