P. A. Sakir Ahmed v. Kerala State Financial Enterprises Ltd. and Ors.

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN FRIDAY, THE 18[TH] DAY OF FEBRUARY 2022 / 29TH MAGHA, 1943`** ## **`WP(C) NO. 15139 OF 2021`** ## **`PETITIONER:`** ``` P.A.SAKIR AHMED AGED 57 YEARS S/O.P.R.AHAMED KHAN, PADIPPURAYIL HOUSE, CHANGANACHERRY TALUK, CHANGANACHERRY P.O., KOTTAYAM-686101. BY ADVS. LIJI.J.VADAKEDOM REXY ELIZABETH THOMAS RAJEEV JYOTHISH GEORGE ``` ## **`RESPONDENTS:`** ``` 1THE KERALA STATE FINANCIAL ENTERPRISES LTD., REGISTERED OFFICE, "BHADRATHA", P.B.NO.510, MUSEUM ROAD, THRISSUR, PIN-680020, REPRESENTED BY ITS MANAGING DIRECTOR. 2THE KERALA STATE FINANCIAL ENTERPRISES LIMITED (KSFE) KATTAPPANA BRANCH, KATTAPPANA, IDUKKI DISTRICT- 685508, REPRESENTED BY ITS BRANCH MANAGER. 3K.ABHIRAMI PONJAYAM, AGED 38 YEARS, D/O.K.S.KALYANASUNDARAM, 2/40, MELE AUTHOOR, AUTHOOR, PIN-628151, TTIRUCHENDUR(DALUKA), THOOTHUKUDI, TAMILNADU STATE. BY ADVS.SHRI.SALIL NARAYANAN K.A., SC, KSFE LTD. SHRI.ARUN FRANCIS ``` ## **`THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 18.02.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:`** **W.P.(C).No.15139/2021** **2** ## **P.V.KUNHIKRISHNAN, J. -------------------------------W.P.(C).No.15139 of 2021** **---------------------------------------------Dated this the 18[th] day of February, 2022** ## **JUDGMENT** This writ petition is filed with following prayers: i. Issue a writ of mandamus, or any other appropriate Writ or Order or direction directing the 1[st] and 2[nd] respondents to release the Original Title Deed of the property and the documents related to the mortgage with respect to the property of 04.53 Ares comprised in Resurvey No. 96/17, Block No. 57 (Old Survey No. 37/1) of Kattappana Village along with the residential building to the petitioner herein which is mortgaged with respondent No.2. ii. Grant such other reliefs which this Honourable Court may deem fit and proper in the interest of justice. (SIC) 2. Petitioner is the owner in possession of a total extent of 04.53 Ares of property comprised in Resurvey No.96/17 in Block No.57 (Old Survey No. 37/1) of Kattappana Village along with a residential building by virtue of Ext.P1 sale deed. The prior owner of the property was one **3** ## **W.P.(C).No.15139/2021** A.Ponjayam. He had availed a loan from the 2[nd] respondent KSFE, in connection with a chitty subscription by mortgaging the title deed. The transfer in favour of the petitioner was subject to the said mortgage. Later the prior owner who had mortgaged the property died and repayment of the loan was defaulted. The KSFE initiated recovery steps against the property. It is the case of the petitioner that he is ready to repay the arrears. But respondents 1 and 2 are not ready to return the title deeds of the property to the petitioner without a no objection from the legal heirs of the original mortgagor. Moreover the 3[rd] respondent is not ready to give such a no objection. In such circumstances, this writ petition is filed. 3. Heard the learned counsel for the petitioner, learned Standing Counsel for respondents 1 and 2 and also the learned counsel for the 3[rd] respondent. 4. When this writ petition came up for consideration on 29.07.2021, this Court passed the following order: “Admit. 2. Standing Counsel takes notice for respondents 1 and 2. Issue notice by speed post to the third respondent. 3. The petitioner purchased an item of property mortgaged by the deceased husband of the third **W.P.(C).No.15139/2021** **4** respondent to the Kerala State Financial Enterprises Limited. The petitioner asserts that he is prepared to settle the liability of the mortgagor, and seeks directions to the Kerala State Financial Enterprises Limited to return the title deeds of the property. 4. The learned Standing Counsel for respondents 1 and 2 points out, on instructions, that the liability covered by the mortgage comes to Rs.41,12,408/-. It was also pointed out that the petitioner is free to liquidate the liability, invoking the one time settlement facility now available by remitting the amounts due on or before 31.8.2021. Having regard to the facts and circumstances of the case, I deem it appropriate to pass an interim order permitting the petitioner to pay the amounts payable in terms of the one time settlement for liquidating the liability under protest within the time stipulated. Ordered accordingly. In the event of the petitioner remitting the amounts, the same shall be kept in a suspense account, pending disposal of the writ petition.” 5. Admittedly the petitioner deposited the amount due to respondents 1 and 2 as directed above. Today when the matter came up for consideration, the learned counsel for the petitioner submitted that there may be a direction to respondents 1 and 2 to release the original title deed of the property to the petitioner in the light of payment of the **5** ## **W.P.(C).No.15139/2021** amount. The 3[rd] respondent is the wife of the above mentioned Ponjayam. The learned counsel appearing for the 3[rd] respondent submitted that even though he tried to contact the 3[rd] respondent, there is no instruction from her. In such circumstances, the learned counsel for the petitioner submitted that the prayers in the writ petition may be allowed. The learned counsel also relied on the judgment of this Court in **Muhammed Sherieff K.S. v. Registrar of Co-operative Societies and Others [2016 (2) KHC 665]** and the judgment of the Apex Court in **Narayan Deorao Javle (deceased) through Lrs. v. Krishna and Others [2021 KHC 6403]** . In **Muhammed Sherieff’s** case (supra), this Court observed that subsequent purchasers can redeem property without reference to mortgagor vendor and seek return of the title deeds from the mortgagee Bank, when the mortgagor vendor has failed to respond to the notice. In **Narayan Deorao’s** case (supra), the Apex Court also considered a point whether the plaintiff is entitled to redeem a share of the property purchased by him on payment of the entire mortgage amount. The Apex Court in paragraph 29 of the above judgment decided this matter in detail: **W.P.(C).No.15139/2021** **6** “The appellant has purchased the land measuring 1 acre 32 gunthas comprising in Survey No. 67/3 for a sum of Rs.1,000/-. No part of the sale consideration was paid to the owners or was kept by the appellant for payment to the mortgagee. Thus, it was unequivocal sale of complete rights in the land comprising in Survey No.67/3. S.60 of the Act provides that a person interested in a share of the mortgaged property will not entitle him to redeem his own share on payment of a proportionate part of the amount remaining due on mortgage. Therefore, conversely, a purchaser from the mortgagor is entitled to redeem the share of the land purchased by him but on payment of the entire mortgage amount. The First Appellate Court has returned such finding in favour of the appellant in Point No. 3 wherein it was held as under: "POINT NO. 3: - The answer to this point is a decision in Bank of Bank of Poona v. Navrajasthan Cooperative Housing Society Ltd., reported in 1967 Mh. L. J. 774 (AIR 1968 Bom 106), in which the Plaintiff had purchased a portion of the mortgaged property and it was held that he had a right to redeem only a portion which he had purchased by making payment of the proportionate mortgage amount. Second part of S.60 cannot be made applicable to the present case, as only in respect of the property purchased by the Plaintiff a right to redeem is inexistence, while in respect of the other part, of which Defendant Nos. 1 & 2 are the owners, **W.P.(C).No.15139/2021** **7** right to redeem is extinguished, therefore even if the Plaintiff redeems the suit land it will not be a redemption in part.” 6. In the light of the above decisions, I think the prayers in this writ petition can be allowed. Therefore, this writ petition is allowed in the following manner: 1. Respondents 1 and 2 are directed to release the original title deed of the property and the documents related to the mortgage with respect to the property of 04.53 Ares comprised in Resurvey No.96/17, Block No.57 (Old Survey No.37/1) of Kattappana Village along with the residential building to the petitioner, forthwith, at any rate, within two weeks from the date of receipt of a copy of this judgment. 2. Respondents 1 and 2 can take the amount now in suspense account as per the order dated 29.07.2021 in this case. sd/- **P.V.KUNHIKRISHNAN JUDGE** JV **8** ## **W.P.(C).No.15139/2021** ## APPENDIX OF WP(C) 15139/2021 ``` PETITIONER EXHIBITS ``` ``` Exhibit P1THE COPY OF THE SALE DEED NO.870/15 OF THE SRO, UDUMBANCHOLA. Exhibit P2THE COPY OF THE NOTICE DATED 05.03.2014 ISSUED BY THE 2ND RESPONDENT TO THE PRIOR OWNER-PONJAYAM (SHOWING THE CHITTY SUBSCRIPTION AND LOAN NOS.) Exhibit P3THE COPY OF THE NOTICE DATED 31.12.2016 ISSUED BY THE SPECIAL DEPUTY TAHSILDAR (RR). ```