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2022 Supreme(Online)(KER) 47559
HIGH COURT OF KERALA
GOPINATH P, J
DEENA – Appellant
Versus
LIC HOUSING FINANCE LTD. (LIC HFL) REPRESENTED BY CREDIT MONITORING OFFICER(CMO) – Respondent
WP(C)/20768/2022
O.A.NURIYA, NEBIL NIZAR, FASNA T.Y, A.JANI, R S KALKURA
The court established that mortgage recovery should precede personal salary deductions, especially in circumstances of hardship.
Headnote:
Recovery - Housing Loan - Act Section List - The court emphasized the priority of recovering amounts owed against mortgaged property before pursuing salary deductions, particularly considering the petitioner's family responsibilities and the intention of the underlying loan provisions.
Fact of the Case:
The petitioner, a teacher, sought relief from having her salary deducted for a housing loan taken by her estranged spouse, arguing that recovery should occur against the mortgaged property.
Finding of the Court:
The court found merit in the petitioner's plea, citing the continuation of salary deductions would result in severe hardship, advocating instead for recovery from the mortgaged property first.
Issues: The main issue was whether the financial institution could recoup the loan amount directly from the petitioner's salary or had to prioritize the mortgaged property as security.
Ratio Decidendi: The court reasoned that the primary security for the loan was the mortgaged property, thus recovery attempts should commence there to avoid undue hardship on the petitioner and her dependents.
Final Decision: The court directed the financial institution to initially pursue recovery against the mortgaged property before any salary deductions.
JUDGMENT
Petitioner is a High School Assistant working at the Captian Memorial School, Kollam. The petitioner is married to the additional 2nd respondent. The additional 2nd respondent availed a housing loan from the 1st respondent financial institution. The petitioner and the additional 2nd respondent have two minor girl children, who are stated to be living with the petitioner. The loan was availed on the strength of salary certificate issued in respect of the petitioner and was also secured by the mortgage of immovable property belonging to the father of the additional 2nd respondent.
2. Learned counsel appearing for the petitioner states that the petitioner and the 2nd respondent have matrimonial disputes, as a result of which they have been living apart from May 2022. It is submitted that the 1st respondent financial institution is proceeding to recover the amounts due under the housing loan availed by the additional 2nd respondent by proceeding against the salary of the petitioner without initiating any action against the immovable property mortgaged to secure the loan. It is submitted that two minor children are residing with the petitioner and if the salary of the petitioner is proceeded against without proceeding against the property mortgaged, the petitioner will be put to serious prejudice and hardship.
3. Learned counsel appearing for the 1st respondent would submit that there is absolutely no merit in the contention taken by the learned counsel for the petitioner. It is submitted that the income of the family was assessed on the basis of the salary certificate issued in respect of the petitioner and the repaying capacity was also assessed on the basis of the same. It is submitted that in terms of the agreement executed with the 1st respondent, it is open to the 1st respondent, recover the amount from the salary of the petitioner. It is submitted that mortgaged property is the property of the father-in-law of the petitioner/father of the additional 2nd respondent. It is submitted that while it may be open to the 1st respondent to proceed against that property which is mortgaged, this is at the option of the 1st respondent who could decide as how it should recover the amounts due to it.
4. Learned counsel appearing for the additional 2nd respondent reiterates the contentions taken by the learned counsel appearing for the 1st respondent and states that the petitioner cannot insist that the amount be recovered only by proceeding against the property which was mortgaged. It is submitted that there is no legal basis for the demand made by the petitioner.
5. Having heard the learned counsel appearing for the petitioner, the learned counsel appearing for the 1st respondent and the learned counsel appearing for the additional 2nd respondent, I am of the view that in the peculiar facts and circumstances of this case a direction can be issued to the 1st respondent to attempt recovery of the loan amounts by proceeding against the property which is mortgaged atleast at the first instance. The reasons which compel me to take such a view are the following:
i It appears that there are matrimonial disputes between the petitioner and the additional 2nd respondent. The petitioner is also having the responsibility of taking care of two minor girl children.
ii If the salary of the petitioner is proceeded against for recovery of the entire amount of the loan availed by the additional 2nd respondent, the same would cause serious prejudice to the petitioner and would also affect the livelihood of the petitioner and her two minor children.
iii The primary security for grant of loan is the mortgaged property. Though there is merit in the contention taken by the learned counsel for the 1st respondent that the 1st respondent can also recover the amount from the salary of the petitioner.
Therefore a direction can be issued to the 1st respondent to first proceed against the primary security to recover the amounts due to it.
6. Accordingly this writ pe
