Disposed

Smt.Leelamba W/O Late P N Krishnaswamy v. the Chief Manager

Karnataka HC5 Sept 2013WP/15077/2013

Case brief

AI extract

What is this about?

The High Court of Karnataka disposed of a writ petition seeking directions to a bank to return original title deeds. The Court held that without documentary evidence linking the original mortgage to the subsequent loan alleged by the bank, the documents cannot be withheld. The bank was directed to verify its claim regarding a continuing guarantee and return the documents within two weeks if no evi

What did the court decide?

The respondent bank directed to verify existence of documents relating mortgage to second loan within two weeks; to return documents if no such document is found.

Smt.Leelamba W/O Late P N Krishnaswamy Vs… — Contract and Commercial Disputes | Karnataka HC (2013)

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IN THE HIGH COURT OF KARNATAKA AT BANGALORE

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DATED THIS THE 5^TH DAY OF SEPTEMBER 2013

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BEFORE

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THE HON’BLE MR. JUSTICE A S BOPANNA

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WRIT PETITION No.15077/2013 (GM-RES)

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Between:

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Smt. Leelamba W/o late P N Krishnaswamy Aged about 80 years R/at 256, 7^th Cross 2^nd Block, Jayanagar Bangalore-11 … Petitioner

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(By Sri N P Kallesh Gowda, Adv.)

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And : The Chief Manager Indian Bank No.70 KMC Building K R Road Branch Basavanagudi Bangalore – 560 004 … Respondent

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(By Sri Rajendra B Kulkarni, Adv.)

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This Writ Petition is filed under Articles 226 & 227 of the Constitution of India, with a prayer to; direct the respondent bank to forthwith to release/handover all the original title deeds standing in the name of late P.N. Krishnaswamy pertaining to the property bearing No.256, 7^th Cross, 2^nd Block, Jayanagar, Bangalore.

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This Writ Petition coming on for Preliminary hearing in 'B' group, this day, the Court made the following :

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O R D E R

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The petitioner is before this Court seeking for issue of mandamus/direction to respondent-bank to forthwith release/handover all the original title deeds standing in the name of Late P.N.Krishnaswamy pertaining to the property bearing No.256, 7^th Cross, 2^nd Block, Jayanagar, Bangalore.

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The case of the petitioner is that the respondentbank had sanctioned a secured overdraft facility in favour of M/s. Vijaya Auto Service. In that regard, the property belonging to the petitioner had been offered as a security. The said loan had been classified as ‘non performing asset’. However, loan had been subsequently cleared, but the documents have not been returned to the petitioner. It is in that circumstance the petitioner had made a request as at Annexure-C seeking return of the documents. The respondent-bank had issued a reply dated 03.01.2013, wherein the bank had indicated their inability to return the documents stating that the loan granted to one Smt. Sandhya Prabhakar has not yet been

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cleared and the documents can only be returned thereafter. The petitioner thereafter got issued legal notice dated 05.02.2013. The respondent instead of returning the documents had got issued reply dated 14.02.2013 expressing their inability to return the documents once again stating with regard to the loan said to have been granted to one Smt. Sandhya Prabhakar. It is in that circumstance, the petitioner is before this Court.

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Though the respondent has not filed their objection to the instant petition, considering that the petition is before this Court seeking for issue of mandamus and in that light, the stand of the respondent

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in any event is available by way of reply notice dated 14.02.2013. As such the petition is considered in that light.

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Even if the reply notice issued by the respondent is taken into consideration, the said reply itself would disclose that in respect of the loan which had been availed by M/s. Vijaya Auto Service, the account had been closed on 10.11.2010. The bank no doubt has indicated that

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before the closure of the loan, the legal heirs of Late

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P.N.Krishnaswamy had confirmed the mortgage executed in favour of the bank. There can be no dispute that the

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petitioner herein is one of the legal heirs of Late P.N.Krishnaswamy, inasmuch as she is the wife of Late P.N.Krishnaswamy. From the reply, it is seen that the mortgage related to the loan transaction between the Bank and M/s. Vijaya Auto Service. Presently, the bank is withholding the documents by referring to a loan transaction between the respondent-bank and Smt. Sandhya Prabhakar. Since Smt. Sandhya Prabhakar is the wife of Sri Prabhakar, who is the son of Late P.N.Krishnaswamy, the respondent seeks to withhold the documents since Sri Prabhakar is stated to have executed the mortgage in respect of the earlier transaction noticed above.

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Firstly, it is seen that from the very reply notice, it is clear that the legal heirs of Late P.N.Krishnaswamy had executed the mortgage in relation to the transaction relating to the loan of M/s. Vijaya Auto Service. Except for stating in their reply notice that the documents are to

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be held for clearance of loan of Smt. Sandhya Prabhakar,

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no documentary evidence has been referred on to indicate that the mortgage which had been created in respect of earlier transaction had thereafter been made over to the subsequent to loan transaction nor any material is placed to show that there is connection between the loan advanced to Smt. Sandhya Prabhakar and earlier loan.

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Hence, to the said extent, to state that the respondent has a lien/charge over the same, documents are to be verified and based only on documents, such right can be claimed and not otherwise. This can only be done after re-examination of the matter by the respondent and if there is no document to indicate that a mortgage has been created by either Sri Prabhakar or the petitioner herein with specific reference to the loan relating to Smt. Sandhya Prabhakar, the documents cannot be withheld. However, this factual aspect shall be verified by the Bank and if there is no such document, certainly bank cannot withhold the documents. On the other hand, if there are any guarantees executed as a continuing guarantee for loan advanced to Smt. Sandhya Prabhakar, then only the

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respondent-bank would be entitled to withhold the

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documents. This aspect of the matter shall be examined by the respondent-bank and the result of the same shall be intimated to the petitioner within two weeks from the date of a copy of this order is furnished. Needless to mention that during such consideration, if it is found that there is no document executed to relate the mortgage to the loan advanced to Smt. Sandhya Prabhakar, the respondent shall return the documents within the said

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period to the petitioner.

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In terms of the above, the writ petition stands disposed of.

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Sd/-

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JUDGE

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akc/bms

Smt.Leelamba W/O Late P N Krishnaswamy v. the Chief Manager

Case brief

What is this about?

What did the court decide?

Smt.Leelamba W/O Late P N Krishnaswamy v. the Chief Manager

Case brief

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