HOUSING DEVELOPMENT FINANCE CORPORATION LIMITED. v. IRINJALAKUDA TOWN CO OPERATIVE BANK
Court: High Court of Kerala
Bench: HONOURABLE MR. JUSTICE AMIT RAWAL
Judgment date:
Case summary
High Court of Kerala judgment dated 2020-06-26. HOUSING DEVELOPMENT FINANCE CORPORATION LIMITED. v. IRINJALAKUDA TOWN CO OPERATIVE BANK. Read the judgment...
Judgment text
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE AMIT RAWAL FRIDAY, THE 26TH DAY OF JUNE 2020 / 5TH ASHADHA, 1942 WP(C). No. 12738 OF 2020(N) PETITIONER/S: HOUSING DEVELOPMENT FINANCE CORPORATION LIMITED. (HDFC LTD. IN SHORT), RAMON HOSE, 169 BACK BAY RECLAMATION, MUMBAI 400 020, REPRESENTED BY THE AUTHORISED OFFICER MR. SACHIN A. S. S/O. SHANAVAS, AGED 39 YEARS, HDFC HOSUE ,3RD FLOOR, RAVIPURAM JUCNTION, M. G. ROAD, KOCHI 682 015. BY ADV. SRI. C. P. SAJI RESPONDENT/S: 1 IRINJALAKUDA TOWN CO OPERATIVE BANK TANA SOUTH, IRINJALAKUDA P. O. THRISSUR 680 121, REPRESENTED BY ITS GENERAL MANAGER. 2 AUTHORISED OFFICER, IRINJALAKUDA TOWN COOPERATIVE BANK TANA SOUTH, IRINJALAKUDA P. O. THRISSUR 680 121 3 AKSHAYA PROPERTIES AND DEVELOPERS , VARIYATHU PLAZA MAERAR ROAD, PROUD WEST, THRISSUR REPRESENTED BY ITS PROPRIETOR JOJU K. V. S/O. VASUDEVAN, KUNDOLIL HOUSE, SANTHI NAGAR, AYYANTHOLE P. O. THRISSUR. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 26. 06.
2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C). No. 12738 OF 2020(N) JUDGMENT Dated this the 26th day of June 2020 Petitioner, a Housing Development Financial Corporation Limited (hereinafter called HDFC Ltd. in short) has approached this Court under Article 226 of the Constitution of India with a prayer of issuance of writ in the nature of certiorari quashing the sale of the properties covered by Ext. P1, agreement for nd sale and construction, conducted by the 2 respondent under the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act (SARFAESI Act) and writ nd in the nature of mandamus directing the 2 respondent not to confirm the sale of the property covered by Ext. P1 with a st nd further prayer of mandamus directing 1 and 2 respondent to st furnish documents relating to loan transaction of 1 respondent rd and 3 respondent and of the proceedings under the SARFAESI Act. 2. Smt.
Deepa Mohan, learned counsel appearing on behalf of the petitioner submits that as it would be evidenced WP(C). No. 12738 OF 2020(N) st from the facts petitioner and the 1 respondent are the rd financial institutions defined under the SARFAESI Act. The 3 respondent owned a land as described in para 3 of the writ petition. Several persons entered into agreement for sale and rd construction with the 3 respondent for purchasing undivided share in the land to construct the apartment. On security of the sale and construction agreement and guarantee offered by rd the 3 respondent these purchases availed home loan from various financial institutions including petitioner. Out of various purchasers 14 purchasers have availed the housing loan from petitioner on security of the apartment to be constructed in the rd complex of the 3 respondent.
The aforementioned loan was granted on security of the apartment to be constructed and the undivided share in the land by producing the originals of their agreement for sale and construction along with original receipts for the contribution of the sale consideration given to the builders. Undivided share and apartment was equitable mortgage. Builder also gave undertaking dated 03. 12. 2015 Ext. P2 to the petitioner stating through letter that the land and WP(C). No. 12738 OF 2020(N) apartment were not subject to any encumbrance charge or st liability. But, intriguingly, the 1 respondent allegedly given rd loan to the 3 respondent and on default had taken steps under the SARFAESI Act. Even the property was also sold and about to confirm the sale, indulgence of this Court with the aforementioned prayer has been sought. 3. I have heard the learned counsel for the parties and appraised the paper book.
I am of the view that the first and second prayer in the absence of the information as sought cannot be granted, third prayer writ would not lie. Petitioner had other remedy instead of invoking the jurisdiction of this Court by seeking information under the Right to Information Act or by inspecting the record of the concerned Registrar, where the property is situated, to ascertain situation of encumbrance. On inspection would have been able to ascertain information regarding creation of charge at whose instance. It is only thereafter the first and second prayer of setting aside and confirmation of sale would arise. 4. With the aforementioned observation, I am of the WP(C). No.
12738 OF 2020(N) view that the first and second prayers cannot be granted until and unless the petitioner obtains the information under the Right to Information Act and this Court will refrain itself from holding an enquiry as it is the prime duty of the petitioner to establish on record on the basis of the information to be taken in accordance with law. The writ petition stands disposed of with aforementioned observation. Sd/- AMIT RAWAL JUDGE nak WP(C). No. 12738 OF 2020(N) APPENDIX PETITIONER'S/S EXHIBITS: EXHIBIT P1 TRUE COPY OF THE AGREEMENT ENTERED BY THE ONE OF THE BORROWERS OF THE PETITIONER AND THE 3RD RESPONDENT DATED 24. 01. 2013. EXHIBIT P2 TRUE COPY OF THE UNDERTAKING LETTER DATED 03. 12. 2015 OF THE 3RD RESPONDENT TO THE PETITIONER. EXHIBIT P3 TRUE COPY OF THE TRIPARTITE AGREEMENT DATED 03. 02. 2015 ENTERED BETWEEN ONE OF THE BORROWERS OF THE PETITIONER ALONG WITH THE 3RD RESPONDENT AND THE PETITIONER.
EXHIBIT P4 TRUE COPY OF THE LETTER OF THE PETITIONER TO THE 2ND RESPONDENT DATED 17. 03. 2020.
Source: High Court of Kerala. Dataset: Dattam Labs. CC BY 4.0. Text extracted automatically; compare with the source PDF for layout and accuracy.