CATHOLIC SYRIAN BANK LTD Vs. P B SUNILKUMAR

JUDGEMENT

(1.) Whether the amount payable to the 4th respondent under the Toddy Workers' Welfare Fund Act is having any 'priority' over the debt due to the petitioner Bank, in favour of whom, mortgage over the property in question was created much earlier and further when a positive decree was obtained by the Bank, pursuant to which the property was transferred to the name of the secured creditor, is the point for consideration. The issue requires a closer scrutiny in view of the rival submissions made from the part of the learned Government Pleader on one side that, it is squarely covered in favour of the respondents as per the recent decision rendered by a learned Judge of this Court in State of Kerala v. Bank of India, 2008 (4) KHC 691 : 2009 (1) KLT 105 : ILR 2008 (4) Ker. 506; while the same is strongly rebutted from the part of the petitioner Bank, placing reliance on the decision rendered by the Apex Court in Union of India and Others v. SICOM Limited and Another, 2009 KHC 4022 : 2009 (2) SCC 121 : ILR 2009 (1) Ker. 763 : 2009 (2) KLT SN 23, and several other verdicts on the point.

(2.) The essential facts required for effective adjudication of this case are such that; the first respondent had availed an overdraft facility from the petitioner Bank, creating equitable mortgage over the property by depositing the title deeds on 15/03/1997. When the first respondent failed to repay, the Bank filed OS 188/1999 for recovery of the due amount, by sale of the mortgaged property as provided under the relevant provisions of the CPC before the Sub Court, Irinjalakuda on 18/06/1999. The suit was decreed in favour of the petitioner / plaintiff Bank on 11/10/2000 as borne by Ext. P1 and the petitioner Bank was allowed to realize the decree amount by sale of the decree scheduled / mortgage property. Accordingly, the Bank filed EP 318/00 and as permitted by the Court, the decree scheduled property over which the mortgage was created, was bid by the Bank in auction, as revealed from Ext. P2 Sale Certificate dated 10/03/2004 issued by the Court. Subsequently, the delivery of possession was also effected in favour of the petitioner Bank on 30th October, 2004 vide Ext. P3; pursuant to which the Bank approached the concerned village officer for effecting mutation, which request was however, not acceded to, stating that there was already an 'attachment' over the property in question, as revealed from Ext. P4 encumbrance certificate issued by the SRO, Mathilakam. Immediately the petitioner rushed to the 3rd respondent by filing Ext. P5 representation, explaining the actual facts and figures and seeking to release the property from attachment. In the course of further steps, the 2nd respondent / Tahsildar conducted an enquiry and reported to the 3rd respondent / District Collector vide Ext. P6, that the attachment was liable to be lifted; which however was not acted upon, keeping the matter in cold storage and this compelled the petitioner Bank to approach this Court by filing the Writ Petition, seeking for appropriate reliefs.

(3.) In the Course of the proceedings before this Court, the requisitioning authority, i.e., Kerala Toddy Workers' Welfare Fund Board at whose instance the attachment was effected, was also impleaded in the party array as the additional 4th respondent. The 2nd respondent / Tahsildar has filed a counter - affidavit seeking to justify the attachment and further proceedings; however without any reference to his own report (Ext. P6); thus raising a diametrically opposite contention. No counter affidavit has been filed by the additional 4th respondent, but for the statement dated 15th June, 2010. The sequence of events and the factual position as narrated by the petitioner in the Writ Petition have not been rebutted by the respondents. As such, the issue is only with regard to the legality of the proceedings being pursued by the respondents under the Kerala Revenue Recovery Act, particularly as to the 'priority', if any, in the matter of realization of the due amount.