K.R. Thankappan vs Nedumkunnam Rural Housing ...
2023 Latest Caselaw 6041 Ker

                IN THE HIGH COURT OF KERALA AT ERNAKULAM

                               PRESENT
            THE HONOURABLE MR.JUSTICE MOHAMMED NIAS C.P.
       FRIDAY, THE 2ND DAY OF JUNE 2023 / 12TH JYAISHTA, 1945
                       WP(C) NO. 30075 OF 2013
PETITIONER/S:

           K.R. THANKAPPAN
           KATTUVETTIYIL HOUSE, NEDUMKUNNAM P.O., KOTTAYAM
           DISTRICT.

           BY ADV SRI.LIJI.J.VADAKEDOM



RESPONDENT/S:

           NEDUMKUNNAM RURAL HOUSING CO-OPERATIVE SOCIETY NO.K 100
           REPRESENTED BY ITS SECRETARY, OFFICE OF THE NEDUMKUNNAM
     1
           RURAL HOUSING CO-OPERATIVE SOCIETY, NEDUMKUNNAM P.O.,
           KOTTAYAM DISTRICT-686 514.

           THE KERALA STATE HOUSING FEDERATION
     2     REPRESENTED BY ITS MANAGING DIRECTOR, OFFICE OF THE
           KERALA STATE HOUSING FEDERATION, KALOOR, KOCHI-682 017.

           BY ADVS.
           SRI.A.N.RAJAN BABU
           SRI.A.N.RAJAN BABU



OTHER PRESENT:

           SMT.VINITHA.B(SR.GP)



     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
02.06.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C) NO. 30075 OF 2013                           2


                              MOHAMMED NIAS C.P., J
                     ............................................................
                              W.P(C) No.30075 of 2013
                     ...........................................................
                      Dated this the 9th day of June, 2023


                                         JUDGMENT

The petitioner and his wife Sulochana jointly purchased an extent of

10.08 Ares of land as per Ext.P1 sale deed, regarding which mutation was

also carried out in the revenue records, evidenced also by the payment of

tax as Ext.P2. Earlier, the predecessor-in-interest of the petitioner one John

Sebastian had purchased the above-mentioned property as per Ext.P3 Sale

Deed from one V.J. Samuel. It is seen Samuel had availed a loan from the

1st respondent Housing Co-operative Society by depositing his title deeds

and by executing a Mortgage Deed No.25/2003 of the SRO, Karukachal. It

is stated that after the execution of Ext.P3 Sale Deed, on 31.3.2011, Sri.

John Sebastian repaid the entire outstanding due under the above-said

mortgage to the 1st respondent society. A photocopy of the receipt

evidencing repayment of the entire loan amount is produced as Ext.P4. The

petitioner contends that since the mortgage money to the 1st respondent

stands discharged and as the 1 st respondent had executed a release deed

No.2038/2011 of the SRO, Karukachal, releasing the liability of the

mortgage over the property by Ext.P5 release deed, the petitioner is entitled

to get back the title deeds of the property from the 1 st respondent society.

The 2nd respondent is refusing to hand over the title deeds to the petitioner,

citing the pendency of outstanding dues from the 1 st respondent society

towards the 2nd respondent Housing Finance Federation.

2. The petitioner submits that going by Section 60 of the Transfer

of Property Act, 1882, the 1st respondent is bound to release the title deeds

on receipt of the mortgage money. The claim of the 2nd respondent apex

society is on the basis of the sub-mortgage created by the 1 st respondent by

depositing the title deeds of the property of the petitioner, which was

received under the original mortgage created between the predecessor-in-

interest of the petitioner and the 1st respondent society. The right of the

sub-mortgagee is subject to the rights and liabilities created on the original

mortgage executed between the 1st respondent society and the predecessor-

in-interest of the petitioner. Therefore, once the mortgagor pays the

mortgaged money to the original mortgagee, in the absence of a contract to

the contrary, the sub-mortgagee cannot retain or refuse to release the title

deeds to the original mortgagee. It is also the submission of the petitioner

that the 1st respondent primary society, which received finance from the 2 nd

respondent apex society, is actually acting as the agent of the 2 nd respondent

society and therefore, the 2nd respondent society must be held vicariously

liable for all the actions taken by the 1 st respondent society. On these

contentions, the petitioner prays for an order directing the respondents to

release the prior title deeds deposited with the 1st respondent.

3. A counter affidavit has been filed by the 2nd respondent apex

society stating that an amount of Rs.10,53,331/- is due from V.J.Samuel's

loan account as on 13.12.2013 and though the petitioner had made the

payment to the 1st respondent, it did not repay the loan amount to the 2 nd

respondent, they are not in a position to return the documents and they can

do so only if the loan amount with interest is cleared.

4. Having heard the learned counsel for the petitioner and the

learned counsel for the 2nd respondent and perusing the records, it is clear

that the petitioner is entitled to succeed as their contentions referred above

have to be accepted. The respondents do not dispute the fact that the

petitioner has repaid the amount in full for which Ext.P4 is produced and

further, a release deed also has been executed.

5. In such cases, when the petitioner has paid the entire amount due

to the 1st respondent primary society, the 2nd respondent apex society has no

right to retain the title deeds of the petitioner, as there is no declaration

given by the petitioner to the primary society that their title deeds will

remain as a security for the amount advanced by the apex society. A similar

view was taken in an identical situation by this Court in the judgment dated

27.02.2015 in W.P(C) No.19397/2011. In such circumstances, the writ

petition is only to be allowed as follows:-

i. There will be a direction to the 2 nd respondent Kerala State Housing Federation to return the title deeds as regards the petitioner's property to the 1st respondent primary co-operative society or through the administrator and the same shall be returned to the petitioner within two months from the date of receipt of a certified copy of this judgment.

ii. The right of the 2nd respondent Federation/apex society to claim amounts due from the 1st respondent primary co-operative society is left open.

The writ petition is allowed as above.

Sd/-

MOHAMMED NIAS C.P., JUDGE

okb/6.6.23

APPENDIX OF WP(C) 30075/2013

PETITIONER EXHIBITS

P1 : COPY OF THE SALE DEED NO.955/2011 DTD.4.5.2011 OF THE SUB REGISTRAR OFFICE, KARUKACHAL.

P2 : COPY OF THE TAX RECEIPT DTD.18.6.2011 ISSUED FROM THE NEDUMKUNNAM VILLAGE OFFICE.

P3 :                    COPY OF THE SALE DEED NO.455/2010 OF THE SUB
                        REGISTRAR OFFICE, KARUKACHAL.

P4 :                    COPY OF THE RECEIPT DTD.31.3.2011 SHOWING THE
                        REPAYMENT OF LOAN AMOUNT WITH RESPECT TO THE
                        PROPERTY OF THE PETITIONER.

P5 :                    COPY OF THE RELEASE DEED NO.2038/2011 OF THE
                        SRO, KARUKACHAL RELEASING THE LIABILITY OF
                        THE MORTGAGE OVER THE PROPERTY OF THE
                        PETITIONER.