Kerala High Court
Joy Augustine vs Purapuzha Service Co-Operative Bank on 28 October, 2025
2025:KER:81120
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE GOPINATH P.
TUESDAY, THE 28TH DAY OF OCTOBER 2025 / 6TH KARTHIKA, 1947
WP(C) NO. 26134 OF 2025
PETITIONER:
JOY AUGUSTINE
AGED 64 YEARS
S/O. AUGUSTHY, KULANGARA HOUSE, PURAPUZHA DESOM,
PURAPUZHA VILLAGE, THODUPUZHA TALUK,
IDUKKI DISTRICT, PIN - 685 583.
BY ADVS.
SRI.SAIJO HASSAN
SRI.BENOJ C AUGUSTIN
SRI.ABRAHAM J. KANIYAMPADY
SRI.SANGEETH MOHAN
SRI.BAPPU GALIB SALAM
SMT.ANINDITA NANDAKUMAR
SMT.V.P.REJITHA
RESPONDENTS:
1 PURAPUZHA SERVICE CO-OPERATIVE BANK
NO. E 70, REPRESENTED BY ITS SECRETARY,
PURAPUZHA P.O, THODUPUZHA, IDUKKI DISTRICT,
PIN - 688 583.
2 SECRETARY
PURAPUZHA SERVICE CO-OPERATIVE BANK, NO. E 70.
PURAPUZHA P.O, THODUPUZHA, IDUKKI DISTRICT,
PIN - 688 583.
3 SPECIAL SALE OFFICER
MUTTOM SCB (GROUP), OFFICE OF THE CO-OPERATIVE
ASST. REGISTRAR (GENERAL) THODUPUZHA,
IDUKKI DISTRICT, PIN - 688 583.
BY ADVS.
SRI.P.N.MOHANAN (FOR R1)
SMT.AMRUTHA SURESH (FOR R1)
SMT. RESMI THOMAS, GP
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
28.10.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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2
JUDGMENT
This writ petition has been filed projecting a grievance
that, in proceedings for recovery of amounts due from the
petitioner, the 1st respondent bank has obtained
attachment over a property that is not mortgaged by the
petitioner to secure repayment of the loan.
2. The learned counsel appearing for the petitioner
would submit that a reading of sub-rule (5) of Rule 71 of
the Kerala Co-operative Rules, 1969 (hereinafter referred
to as the 'Rules'), will indicate that the bank has to first
proceed against the mortgaged property, and it is only
thereafter that they can proceed against any other
property belonging to the borrower in the manner
contemplated by Chapter XI of the Kerala Co-operative
Societies Act, 1969 (hereinafter referred to as the 'Act'). It
is submitted that the attachment ordered through Ext.P5
by the 3rd respondent over property that is not mortgaged
cannot be sustained in law. It is also submitted that the
property, which is subject matter of Ext.P5, has been
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WP(C) NO. 26134 OF 2025
mortgaged by the petitioner with the Kerala State
Financial Enterprises Ltd.. It is submitted that without
having regard to the provisions of Rule 71(5) of the Rules,
the respondent bank has notified the property, which is not
mortgaged, for sale through Ext.P7. The petitioner is thus
before this Court claiming the following reliefs:
i. "Issue a writ of mandamus or any other
appropriate writ, direction or order, quashing
Exhibit P7 sale notice;
ii. Issue a writ of mandamus or any other
appropriate writ, directing the 1st respondent
that sale proceedings can only be initiated
against any other property of the Petitioner, only
in the event if the sale proceeds are not
sufficient enough to settle the outstanding due
of the loan amount after affecting the sale of the
property which special charge was created as
per Gehan while availing the loan."
3. The learned counsel appearing for the
1st respondent bank would submit that the property which
is mortgaged will not fetch a value that may be required to
settle the entire liability of the petitioner. It is submitted
that the wife of the petitioner has also taken a loan on the
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strength of the mortgage executed over the same property
that has been mortgaged by the petitioner, and the total
liability is in excess of Rs.10 lakhs. It is submitted that
Rule 71(5) of the Rules cannot be read as running counter
to the provisions of Section 77 of the Act. It is submitted
that the 3rd respondent exercises all the powers of
Registrar and has been empowered in the manner
contemplated by Section 77 of the Act. It is submitted
that, therefore, the 3rd respondent was well within his
rights to attach the property of the petitioner and bring it
to sale.
4. The learned counsel appearing for the petitioner
would submit in reply that the fair value of the property
mortgaged by the petitioner will indicate that the sale of
that property alone would be sufficient to settle the entire
liability. It is submitted that the fair value of the
mortgaged property is Rs.44,49,852/- and there was no
reason to proceed against the property which has not been
mortgaged.
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5. Having heard the learned counsel appearing for
the petitioner and the learned counsel appearing for the
1st respondent bank and having regard to the facts and
circumstances of the case, I am of the view that while the
learned counsel for the 1st respondent bank may be right in
contending that the 3rd respondent may also proceed
against the property that has not been mortgaged, the
property that has not been mortgaged can be brought to
sale only if the sale of the property that is mortgaged is
insufficient to clear the liability to the 1 st respondent bank.
Even though the 3rd respondent may be entitled to attach
the property that is not mortgaged to secure the interest of
the 1st respondent bank (especially in a situation where the
1st respondent bank asserts that the mortgaged property
may not fetch the value for settling the entire liability of
the petitioner and his wife), in the light of the provisions
contained in Rule 71(5) of the Rules, it will only be proper
that the mortgaged property is sold first.
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6. Accordingly, this writ petition will stand disposed
of, directing that respondents shall bring to sale the
property of the petitioner that has been mortgaged with
the 1st respondent bank to secure the repayment of the
loans availed from the 1st respondent bank and thereafter
alone will the respondents proceed against the other
property which has not been mortgaged. However, it is
clarified that any attachment over the property that has
not been mortgaged will continue till the liability is settled
in full. The rights of the respondent bank to proceed
against the property that has not been mortgaged will also
be subject to the right of the Kerala State Financial
Enterprises Ltd., which is stated to be holding a mortgage
over that item of property.
Writ petition is disposed of as above.
Sd/-
GOPINATH P.
JUDGE
ats
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WP(C) NO. 26134 OF 2025
APPENDIX OF WP(C) 26134/2025
PETITIONER'S EXHIBITS
Exhibit P1 TRUE COPY OF THE TAX RECEIPT OF THE
MORTGAGED PROPERTY OF THE PETITIONER'S WIFE
DATED 17.07.2024.
Exhibit P2 TRUE COPY OF THE EXECUTION APPLICATION EA
93/2024 DATED 05.02.2024.
Exhibit P3 TRUE COPY OF THE DEMAND NOTICE DATED
14/10/2024 ISSUED BY THE 3RD RESPONDENT.
Exhibit P4 TRUE COPY OF THE ATTACHMENT NOTICE DATED
14.10.2024 ISSUED BY THE 3RD RESPONDENT.
Exhibit P5 TRUE COPY OF THE ATTACHMENT NOTICE DATED
16.01.2025 ISSUED BY THE 3RD RESPONDENT.
Exhibit P6 TRUE COPY OF THE AFFIDAVIT SUBMITTED BY THE
PETITIONER TO THE KERALA STATE FINANCIAL
ENTERPRISE DATED 9.02.2022.
Exhibit P7 TRUE COPY OF THE COPY OF THE PROCLAMATION
FOR SALE NOTICE PUBLISHED ON 6.07.2025 IN
MALAYALA MANORAMA NEWSPAPER.
Exhibit P8 TRUE COPY OF THE REPRESENTATION SUBMITTED
BEFORE THE 2ND RESPONDENT ON 07.07.2025.
Exhibit P9 TRUE COPY OF THE REPRESENTATION SUBMITTED
AND BEFORE THE 3RD RESPONDENT ON 08.07.2025.
Exhibit P10 TRUE COPY OF THE PRINT OUT OF THE FAIR VALUE
OF THE LAND IN RE-SURVEY NO 298/11 FROM THE
SITE OF THE REGISTRATION DEPARTMENT.
Exhibit P11 THE TRUE COPY OF THE PRINT OUT OF THE FAIR
VALUE FROM THE REGISTRATION DEPARTMENT SITE
FOR THE PROPERTY LOCATED IN RE-SURVEY NO
298/9/2.
RESPONDENT EXHIBITS
EXHIBIT R1(a) TRUE COPY OF THE VALUATION CERTIFICATE OF
THE CHARTERED VALUER ISSUED ON 25.10.2024
