The petitioner along with his wife and daughter had created an equitable mortgage of certain immovable properties as 'additional collateral security' in favour of the 6th respondent for securing a loan availed by respondents 3 to 5. Consequent to default committed in repayment of the loan, proceedings under the Security Interest (Enforcement) Rules, 2002 was initiated against the petitioner, his wife and daughter with respect to the immovable property mortgaged. This writ petition was filed voicing grievance to the extent that the respondents 3 to 5 started removing earth and laterite stones from properties belonging to them, which was mortgaged as primary security for availing the loan in question. It was pointed out that, despite Exts.P7 and P8 complaints submitted by the petitioner before respondents 2 and 6, no action was taken to restrain such illegal extraction and the wastage committed in the property. Contention was taken to the effect that, unless the 6th respondent takes effective steps to protect the secured assets, which is the primary security as far as the loan is concerned, the petitioner and his family members are entitled to seek exoneration from their liability as guarantors, based on provisions contained in the Indian Contract Act. 2. When this Writ Petition is came up for admission on 11/06/2008, this court passed an interim order directing respondents 2 to 6 to see that the respondents 4 and 5 do not remove earth and laterite stones from the property mortgaged. It was observed that if the 6th respondent fails to prevent such activities, disability attached to the proceedings for recovery for not safeguarding the security interest would be enforced. Subsequently, on the application of the petitioner, an Advocate Commissioner was deputed to inspect the property, based on order dated 19/08/2008. Learned Senior Counsel appearing on behalf of the petitioner points out that the report of the Advocate Commissioner revealed about removal of considerable quantity of earth and laterite stones from the property. It shows clear dereliction on the part of the 6th respondent in taking appropriate safeguards, is the contention. However, learned Standing Counsel appearing on behalf of 6th respondent had disputed the version contending that, all necessary precautions were taken to prevent any such wastage/ damage being caused to the secured assets.
3. Relief sought for at present is to restrain the proceedings initiated against the petitioner by the Bank. Whether the petitioner is entitled to seek exoneration from the liability created by virtue of mortgage is a question which needs to be adjudicated before the appropriate forum, based on factual materials and evidence. This court in exercise of power vested under Article 226 cannot venture upon any such adjudication, which basically require appreciation of factual aspects, which are in dispute. Therefore, this court is of the opinion that the relief sought for as mentioned above cannot be granted in this writ petition. However, it will be left open to the petitioner to agitate the issue before appropriate forum.
Reserving liberty as mentioned above, this Writ Petition is disposed of holding that the relief prayed for cannot be granted by this court.
Sd/-C.K. ABDUL REHIM JUDGE MJL