Kerala High Court
Ramdas K vs Adatt Farmers Service Co Operative Bank ... on 3 July, 2024
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE VIJU ABRAHAM
WEDNESDAY, THE 3RD DAY OF JULY 2024 / 12TH ASHADHA, 1946
WP(C) NO. 9636 OF 2024
PETITIONER:
RAMDAS K.,AGED 34 YEARS
S/O. AMBIKA, , KARINGA MADATHIL,
PURANATTUKARA, THRISSUR, PIN - 680551
BY ADVS.N.SASI
RASMI NAIR T.
JITHENDRAN S.
RESPONDENTS:
1 ADATT FARMERS SERVICE CO OPERATIVE BANK
LIMITED NO. R.689, PURANATTUKARA, THRISSUR ,
REPRESENTED BY ITS MANAGER, PIN - 680551
2 RAJAGOPALAN,AGED 67 YEARS
. S/O. KRISHNAN, THAZHATHU HOUSE,
PURANATTUKARA P.O, THRISSUR, PIN - 680552
3 SURESH T.K., AGED 67 YEARS
, S/O. KRISHNAN, , THAZHATHU HOUSE,
PURANATTUKARA P.O, THRISSUR, PIN - 680551
* ADDL.R4 SUB REGISTRAR
SUB REGISTRAR OFFICE, AYYANTHOLE ,
THRISSUR, PIN - 680003
ADDL 4TH RESPONDENT IS IMPLEADED AS PER ORDER DATED
11.04.2024 IN I.A.1/2024 IN WP(C0 NO.9636/2024
BY ADVS.
P.C SASIDHARAN
SREENATH VIJAYARAGHAVAN
SR.GP DEEPA NARAYANAN
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
03.07.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C) No.9636 of 2024 2
VIJU ABRAHAM, J.
.................................................................
W.P.(C) No.9636 of 2024
.................................................................
Dated this the 3rd day of July, 2024
JUDGMENT
The petitioner purchased 12.26 Ares of land as per Ext.P1 deed
from the 3rd respondent after the dues due to the District Co-operative Bank,
Thrissur was cleared by the 3rd respondent. The 2nd respondent availed a
loan from the 1st respondent and the said loan was fully repaid and the
documents were released to the 2nd respondent. Thereafter, the 2nd
respondent executed Ext.P2 in favour of his father and after the death of his
father, the property was partitioned between respondents 2 and 3 as per
Ext.P3 partition deed. The petitioner purchased the property from the 3 rd
respondent after execution of Ext.P3 partition deed. When the petitioner
applied for a loan for the purchase of this property, it was understood that
though the loan was fully repaid by the 2 nd respondent and original deeds
were returned back, the Gahan created was not lifted and thereafter the
petitioner and the 3rd respondent requested the 1st respondent to execute a
release deed but the same was declined for the reason that the 2 nd
respondent had availed another loan by mortgaging two other properties and
defaulted. Petitioner contends that the stand taken by the 1st respondent in
not executing a release deed is absolutely arbitrary in as much as the
subsequent loan availed by the 2nd respondent was by mortgaging two other
properties and the earlier loan was completely repaid in 1996 and the original
documents were also returned.
2. A detailed counter affidavit has been filed by the 1st respondent
opposing the relief sought for in the writ petition mainly contending that the
2nd respondent has availed a loan in the year 1996 and though the same
was repaid, he and his son availed another two loans towards which huge
amount is due to the bank and that the society retains a lien over the
properties owned by the 2nd respondent.
3. The contention of the learned counsel for the 1st respondent
bank relying on the decision in K.C. John and another v. Liquidator,
Wadakkancherry Housing Co-operative Society Ltd and Others, 2006
KHC 300 that a writ petition is not maintainable cannot be accepted in as
much as the petitioner is not a member of the 1 st respondent society and
therefore the present issue cannot be considered as a dispute between the
society and its members. Further, in Zonal Manager, Central Bank of
India v. Devi Ispat Ltd. (2010) 11 SCC 186, the request made by the
respondent therein was to return the security documents, for issuance of a
no-objection certificate and a no-due certificate. The Apex Court after going
through various precedents on the point, held in paragraphs 29 and 30 as
follows:
"29. In the case on hand, it is not in dispute that the appellant Bank, being
a public sector bank, discharging public functions is "State" under Article
12. In view of the settlement of the dues on the date of filing of the Writ
Petition by arrangement made through another nationalised bank, namely,
State Bank of India and the statement of accounts furnished by the
appellant Bank subsequent to the same i.e., on 14.5.2009 is 0.00 (nil)
outstanding, we hold that the High Court was fully justified in issuing a writ
of mandamus for return of its title deeds.
30. In the light of the above conclusion, we are unable to accept the
claim of the appellant Bank and on the other hand, we are in entire
agreement with the direction issued by the learned Single Judge affirmed
by the Division Bench. Consequently, the appeal of the Bank is dismissed.
The appellant Bank is directed to return the title deeds deposited by the
respondent Company within a period of two weeks from today. With the
above direction, the civil appeal is dismissed. No order as to costs."
In view of the above, I am of the opinion that the present writ petition is
maintainable.
4. Admittedly, the earlier loan availed by the 2 nd respondent was
fully repaid and the documents were also released. After getting the
documents released, he executed Ext.P2 sale deed in favour of his father
and after the death of his father, the property was partitioned as per Ext.P3
between respondents 2 and 3 and the petitioner purchased the property from
the 3rd respondent. It is only after closing of the earlier loan and getting back
the title deeds mortgaged that partition was effected between respondents 2
and 3 as per Ext.P3 and thereafter the petitioner purchased the property from
the 3rd respondent from whom the 1st respondent has no case that any
amount is due. Therefore, after settling the loan availed and thereafter
getting back the title deeds, the stand taken by the bank that they have a lien
over the property cannot be accepted at all. After the loan amount was fully
repaid and the title deeds were given back, the 1st respondent was duty-
bound to execute a release deed which was executed at the time of availing
of the earlier loan.
In view of the above, the above writ petition is disposed of with a
direction to the 1st respondent to execute a release deed and take steps to
delete entry no.3 in Ext.P4 encumbrance certificate without any delay, at any
rate, within an outer limit of two months from the date of receipt of a copy of
the judgment. The additional 4th respondent shall also do the needful in this
regard for deleting entry no.3 in Ext.P4 encumbrance certificate.
Sd/-
VIJU ABRAHAM
JUDGE
cks
APPENDIX OF WP(C) 9636/2024
PETITIONER EXHIBITS
Exhibit P1 TRUE COPY OF THE SALE DEED NO. 865/2023 DATED
24.3.2023 OF AYYANTHOLE SRO
Exhibit P2 TRUE COPY OF THE SALE DEED NO. 4439/1999
DATED 18.9.1999 OF AYYANTHOLE SRO
Exhibit P3 TRUE COPY OF THE PARTITION DEED NO. 1877/1999
DATED 20.6.2016 OF AYYANTHOLE SRO
Exhibit P4 TRUE COPY OF THE ENCUMBRANCE CERTIFICATE
DATED 17.2.2023 ISSUED BY THE SUB REGISTRAR ,
AYYANTHOLE
