The petitioner is a society registered under the Kerala Co- operative Societies Act. The grievance projected is in respect of the steps taken by the respondent Bank/Federal Bank by proceeding against the property, wherein secured interest is stated as created in favour of the respondent Bank, invoking the machinery under the SARFAESI Act.
2. The prayers are in the following terms:
i) issue a writ of mandamus or other appropriate writ, order or direction, directing the 1st respondent only to take possession and conduct sale under SARFAESI Act one half portion of the property described in Exhibit P5 notice at the first instance for the realisation of the amount due to them from the second respondent.
ii) issue writ of mandamus or other appropriate writ, order or direction preventing the 1st respondent from conducting sale of the entire property mortgaged by the 2nd respondent except the extent sufficient for the realisation of the amount due from the 2nd respondent in such a manner to disable the petitioner to recover the amount due under Exhibit P1 award from the 2nd respondent
iii) direct the 1st respondent to keep in abeyance all further proceedings initiated under SARFAESI Act for taking possession of the property situated in Re-Sy.No.22/5 of Kalanjoor Village covered by Sale Deed No.904/2005 dated 10.06.2005 of the Sub Registrar Office, Enadimangalam having an extent of 4 Ares described in Exhibit P5 notice, till the disposal of the writ petition (Civil) ; and
iv) grant such other reliefs that are found necessary by this Hon'ble court in the facts and circumstances of the case. "
It is stated that by virtue of liability of the owners of the property, Ext.P1 award has been passed in favour of the petitioner in ARC.561 of 2012. In the course of execution proceedings, the property concerned stands attached as per Ext.P3 order dated 20.10.2013 by the Sub Court, Pathanamthitta and Ext.P4 is the attachment report. The said property having been attached already, is contended as not liable to be proceeded against, to be sold by the respondent Bank, in exercise of the power and procedure under the SARFAESI Act.
3. The learned Counsel for the respondent Bank submits that two loans were availed by the deceased husband of the second respondent/Seethalakshmi. When steps were taken to have the due amount realised, the deceased husband of the second respondent, by name Koshy, approached this Court by filing W.P(C)31147 of 2010, wherein interference was declined and the writ petition was dismissed on 05.09.2011. It is further stated that the said Koshy took his last breath and thereafter, in view of subsequent course and events, the legal representatives including the second respondent approached this Court by filing W.P.(C)No.28425 of 2013, when the reliefs sought for were vehemently opposed by the respondent Bank. After hearing both the sides, the said writ petition was disposed of, permitting the petitioners therein to liquidate the liability by way of four equal monthly installments, simultaneously intercepting the coercive proceedings taken in the meanwhile. Since the said writ petitioners did not satisfy the installments, the Bank proceeded with further steps by filing a petition under Section 14 of the SARFAESI Act before the concerned CJM Court, leading to Ext.P5 notice issued by the said Court. On receipt of the notice issued by the Advocate Commissioner, the petitioner Society has approached this Court by filing this writ petition seeking to intercept the proceedings, with the prayers as mentioned herein before.
4. It is brought to the notice of this Court that a mortgage was created in favour of the respondent Bank as early as on 29.12.2006. Exts.P1 to P4 proceedings are much later to the said mortgage and as such, the petitioner, if at all is having any right, will have to wait in queue and see whether anything is left out, after satisfying the liability to the respondent Bank. It is also pointed out, that after creating mortgage in favour of the respondent Bank, another mortgage was created clandestinely in favour of another co-operative Bank, which aspect had been taken note of by this Court in the earlier round, when judgment was rendered on 28.11.2013 in W.P.(C) 28425 of 2013.
5. In the above circumstance, this Court finds that the reliefs sought for by the petitioner are not liable to be entertained. The writ petition is dismissed. It is however made clear that the sale shall be conducted by the respondent Bank after wide publicity. It is open for the petitioner society to participate in the sale or to make other appropriate arrangement. The balance amount, if any, generated by sale of the property concerned shall be kept in an appropriate account generating interest and it will be for the creditors or owners of the property to get appropriate orders from the appropriate Forum to have the said amount disbursed in accordance with law.
P.R.RAMACHANDRA MENON JUDGE lk