Kerala High Court
Mohammed Iqbal vs Canara Bank on 5 September, 2024
Author: Dinesh Kumar Singh
Bench: Dinesh Kumar Singh
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE DINESH KUMAR SINGH
THURSDAY, THE 5TH DAY OF SEPTEMBER 2024 / 14TH BHADRA, 1946
WP(C) NO. 30072 OF 2024
PETITIONERS:
1 MOHAMMED IQBAL,
AGED 56 YEARS, S/O. T. A. MAHAMOOD,
THALANGARA HOUSE, SEETHANGOLI, KANNUR,
KASARGOD, PIN - 671321.
2 ZAREENA T. M.,
AGED 44 YEARS, W/O. NASSIR K. A.,
THALANGARAR HOUSE, SEETHANGOLI, KANNUR,
KASARGOD, PIN - 671321.
3 SHAHANAS T. M.,
AGED 46 YEARS, W/O. HANEEFA MUHAMMED,
THALANGARA HOUSE, SEETHANGOLI, KANNUR,
KASARGOD, PIN - 671321.
BY ADVS.
SRI. P. M. RAFEEK
SMT. RADHIKA V. R.
SRI. V. A. NAVAS
RESPONDENTS:
1 CANARA BANK,
REGIONAL OFFICE, KASARGOD, KERALA, PIN - 671121,
REPRESENTED BY ITS AUTHORISED OFFICER.
2 THE BRANCH MANAGER,
CANARA BANK, KASARGOD BRANCH (DPCD 14204),
KASARGOD, KERALA, PIN - 671121.
3 T. M. MOHAMMED ASHRAF,
S/O. T. A. MAHAMOOD, THALANGARA HOUSE,
SEETHANGOLI,KANNUR, KERALA, PIN - 671321.
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BY ADVS.
SRI. GOPIKRISHNAN NAMBIAR M - SC
SRI. K. JOHN MATHAI(K/413/1984)
SRI. JOSON MANAVALAN(J-526)
SRI. KURYAN THOMAS(K/131/2003)
SRI. PAULOSE C. ABRAHAM (MAH/58/2006)
SRI. RAJA KANNAN(K/356/2008)
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 05.09.2024, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
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DINESH KUMAR SINGH, J.
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W.P.(C) No. 30072 of 2024
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Dated this the 5th day of September, 2024
JUDGMENT
1. The present writ petition has been filed for the following
prayers;
1. Issue a writ of Mandamus or appropriate
Writ order or direction, directing the 1st and
2nd respondent to defer the sale of the
properties as scheduled in Exhibit P1 with
respect to the properties of the petitioners' and
direct them to constrain the sale only with
respect to item no.1 property belonging to the
3rd respondent.
2. Issue a writ of certiorari or appropriate
writ order or direction, deferring/staying/set-
asiding the sale or confirmation of sale, if sale
is conducted, and direct the respondents 1 and
2 to conduct sale afresh excluding the
properties of the petitioners mentioned in
Exhibit P1.
3. This Hon'ble Court may grant leave to
the petitioner from filing the translation of the
vernacular documents produced with the writ
petition.
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4. Issue appropriate order or direction that
this Hon'ble Court may deem fit and proper in
the facts and circumstances of the case.
2. The 3rd respondent had availed over draft facility of Rs.
75,00,000/- and term loan of Rs. 50,00,000/- from the 1 st
respondent Bank. The petitioners are guarantors to the said
loans and the 3rd respondent had mortgaged his property
admeasuring 118 cents of land in Re-survey No. 166/2-7, 166/2-4,
166/2-5 situated in Kannur Village, Manjeswar Taluk. As the
petitioners stood as guarantors for the loan, their properties
were also furnished as additional security.
3. The learned Counsel for the Bank submits that, as of today,
the outstanding amount in respect of Bank is Rs. 1,96,24,069/-.
4. The learned Counsel for the petitioners submits that the
principle borrower's property itself fetch more than the amount
due to the Bank. Therefore, instead of putting on sale all the
properties mortgaged including the petitioners', the Bank should
proceed with the sale of the secured assets of the principle
borrower and, if the Bank's liability in any case is not satisfied by
sale of the secured assets of the principle borrower, the Bank may
proceed with the sale of the petitioners' properties. He further
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submits that, if there is short fall of some amount after sale of the
property of the principle borrower, the petitioners are willing to
make payment of the balance amount forthwith to the Bank.
5. Considering the aforesaid submissions, the present writ
petition is disposed of with direction to the respondent Bank to
proceed first against the secured assets of the principle borrower
and if the liability of the Bank is not satisfied from disposal of the
secured assets of the principle borrower, the Bank may proceed
with the sale of the properties of the petitioners. If on sale of the
property of the principle borrower, there is some short fall, the
petitioners should make good the said short fall to save their
properties. The Bank shall put the petitioners on notice on such a
short fall for making payment. If the petitioners fails to make
good the short fall, the Bank shall be free to proceed against the
properties of the petitioners to realise its dues.
Sd/-
DINESH KUMAR SINGH
JUDGE
Svn
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APPENDIX OF WP(C) 30072/2024
PETITIONERS' EXHIBITS
EXHIBIT P1 A TRUE COPY OF THE COVERING LETTER WITH
SALE NOTICE DATED 8/7/2024 ISSUED TO THE
3RD RESPONDENT BY THE 1ST RESPONDENT BANK
EXHIBIT P2 A TRUE COPY OF THE LEGAL NOTICE DATED
21/8/2024 ISSUED BY THE PETITIONERS TO THE
2ND RESPONDENT
