P.SANTHAKUMARY AMMA Vs. INDIAN OVERSEAS BANK

JUDGEMENT

(1.) The above writ petition is filed seeking to quash Exts. P3, P5 and P6 and for a further direction commanding respondents 1 and

(2.) to return the title deed Nos.2031/1973, 194/1953 and 307/1964 of SRO Palugal, Kanyakumari district, Tamil Nadu to the legal heirs of Shri. P.Gopinathan Pillai,(the petitioners and the respondent Nos. 3, 4 and 5) without any delay. 2. The short facts necessary for the disposal of this writ petition are as follows: The petitioners and the respondents 3 to 5 are the only legal heirs of late Shri. P. Gopinathan Pillai, who was the proprietor of M/s.Laxmi Cashew Corporation at Kollam. The said Gopinathan Pillai died on 9/5/2003. Cash credit facilities were availed from respondent No.1 by late Sri. P. Gopinathan Pillai in the year 1997 as proprietor of M/s.Laxmi Cashew Corporation, mortgaging immovable properties and the said liability has been satisfactorily discharged in the year 1999 by paying the full amount along with interest. The said properties were not secured for any other loan and have also not availed of any other loan from the respondent bank. The legal heirs of the said late Sri. P. Gopinathan Pillai came to know that respondent No. 1 bank has filed suits as O.S Nos. 1 to 7 of 1987 before the Principal Sub Court, Kollam for the realisation of money from a Group of Companies, altogether seven in number, known as KJP Group. In the said suit, Sri. P. Gopinathan Pillai was not impleaded as a party and his properties were also not scheduled in the plaint. The said suits were compromised between the parties in the suit and in some compromise petitions, the signature of Sri. P. Gopinathan Pillai was obtained by the bank. In terms of the compromise, the Sub Court has passed the judgment and decree. In all the decrees, 28 items of properties belonging to the company were scheduled as mortgaged properties, whereas the properties of Sri P. Gopinathan Pillai were not scheduled in the decrees. The properties of Sri. P.Gopinathan Pillai has not been given as security for the loan availed by KJP Group of Companies from the 1st respondent Bank. The present stand of the bank is that since Sri. P. Gopinathan Pillai has given personal guarantees to the said loans, even after satisfactorily discharging all the amounts due towards the bank, availed by Sri. Gopinathan Pillai in 1999, the title deeds of the mortgaged properties cannot be returned back to the petitioners and respondents 3, 4 and 5. It is aggrieved by the inaction on the part of the 1st respondent bank in not returning the title deeds of the properties of Sri. P. Gopinathan Pillai, after closing the liabilities as early as in the year 1999, the petitioners have approached this Court.

(3.) A detailed counter affidavit has been filed by the 1st respondent wherein a preliminary objection was raised regarding the maintainability of the writ petition. The 1st respondent would contend that the retention of title deeds is in the course of the normal commercial business of the respondent Bank and no public duty is being discharged by the 1st respondent in this regard and therefore, the writ petition is not maintainable. The 1st respondent in the counter affidavit would admit that the loan was availed by late Sri. P. Gopinathan Pillai, who was the proprietor of M/s Laxmi Cashew Corporation and that the said credit facilities availed by the Corporation were closed in the year 1995. It is further averred that the said late Sri. Gopinathan Pillai was a guarantor to the credit facilities availed on by M/s. KJP Group of Companies and the accounts were classified as NPA and thereupon legal proceedings were initiated. Bank attempted to proceed against various properties of the said company and properties situated in Tamil Nadu were sold through DRT proceedings. The properties situated in Kerala were under Sales Tax attachment, and therefore, the properties were released on payment of Rs.725.00 Lakhs. Though the properties in Hyderabad were also proceeded against, proceedings are pending before the courts in respect of the said properties. It is the case of the respondent bank that as on 23/3/2023, an amount of Rs.34.18 Crores is due under the credit facilities availed by the borrowers and the late Sri. Gopinathan Pillai was a guarantor to the said credit facilities. In view of the above, the request of the petitioners to release the title deeds of the properties was rejected by the respondent Bank. The said title deeds were retained in the exercise of its general lien under Sec. 171 of the Indian Contract Act, 1872(in short "the Act 1872"), since the late Gopinathan Pillai had extended his personal guarantee for the credit facilities availed of by M/s. KJP Group of Companies. In support of his contention, the 1st respondent relies on the judgment of the Apex Court in Syndicate Bank v. Vijay Kumar [AIR 1992 SC 1066]. It is also submitted that though the legal heirs of late Sri. Gopinathan Pillai had filed a complaint before the Banking Ombudsman, the same was closed on finding that the said complaint is not maintainable. In view of the above, it is contended that the petitioners are not entitled to any of the reliefs sought for in this writ petition.