ADHIMOOLAM Vs. INDIAN BANK

JUDGEMENT

(1.) PETITIONERS have filed these two Writ Petitions, praying for issuance of a writ of certiorari, to call for the records of the fourth respondent pertaining to the order, dated 31.12.2007, passed in M.A.No.124 of 2007 in D.R.C.No.187 of 2001 in O.A.No.375 of 1997 and quash the same.

(2.) THE facts, which led to the filing of these Writ Petitions, are as follows:

(3.) SECOND respondent has also filed a counter, by putting the petitioner to strict proof of the averments contained in the petition. It is stated in the counter that the second respondent and the petitioner, at the cost of the second respondent, had decided to develop the petition subject property and an initial payment towards the development work was also released to the petitioner by this respondent. The said initial payment was made by mortgaging the petition subject property to the first respondent bank. The initial money was paid with a fond hope that the petitioner will develop the property and the petitioner and this respondent will have a huge income out of the same. But, the petitioner has started swindling the moneys given by this respondent without developing the petition subject property. A criminal complaint was also made against the petitioner by this respondent and the same was investigated. The first respondent initiated recovery proceedings against this respondent as guarantor, wherein the petitioner was also made a party and as mortgagor/guarantor. After due service to the petitioner, the petitioner, in those proceedings, did not appear and therefore was set ex parte before the Tribunal. Since the recovery proceedings were pending, as per the legal advice, this respondent was directed to file a memorandum of compromise with all the parties, including the petitioner. On explaining all these things, the petitioner readily joined in the compromise and a memorandum of compromise was also filed before the DRT. Due to various calamities and unforeseen circumstances, the said compromise was not able to be fulfilled. Subsequently, since that failure has happened at borrowers end, as per the terms of compromise, an interim recovery certificate was issued by the Tribunal and the properties were brought into auction. All the properties mortgaged were brought into auction by the Recovery Officer of the Tribunal. Several publications were given and some of the properties were sold and some were not sold. Under the circumstances, after deducting the money which was realized by the bank from auctions, the bank has given opportunity to the borrowers and the balance was paid by the borrower in full quit and the bank has filed a full satisfaction memo before the Tribunal. As a matter of fact, when the petitioner has misappropriated funds by utilizing the same for his own use, that was questioned by this respondent by filing a criminal complaint with the police department. The petitioner has come in person and executed the documents relating to the mortgage and now claims as if he has blindly believed this respondent and signed those documents, which is concocted for the purpose of this Writ Petition. It is also not correct to state that the petitioner was not aware of the pending O.A. in Debt Recovery Tribunal against this respondent and the petitioner, as the petitioner had discussed about the pending O.A.on several occasions.