The court upheld that separate loans with a shared guarantee can proceed against common properties, dismissing previous ruling applicability.

JUDGMENT

The petitioners have approached this Court challenging Exts.P3 and P4 notices. Ext.P3 is a demand notice issued in execution proceedings for the recovery of amounts due under an award passed under Section 70 of the Kerala Co-operative Societies Act , 1969, and Ext.P4 is an auction notice proposing to bring to sale separate extents of property belonging to the petitioners for recovery of amounts due from them.

2. It is the case of the learned counsel appearing for the petitioners that Petitioners 1 and 2, along with their sister Late Pennamma, had availed three separate loans, each secured by the mortgage of distinct items of property. It is submitted that after the demise of Late Pennamma, the bank issued a notice to the 3^rd petitioner (another sister of petitioners 1 & 2) as the legal heir and representative of the estate of Late Pennamma. It is submitted that, going by the law laid down by this Court in Karthiyayani Amma v. State of Kerala and Others , 1971 KHC 276 , a common notice for the sale of three separate items of property cannot be sustained in law. It is submitted that on this short ground, the impugned demand notice and the impugned sale notice are liable to be set aside.

3. The learned counsel appearing for the respondent bank submits that, though the loans availed by the petitioners are separate and the bank had obtained separate awards against each of the petitioners, the registered ‘Gehan’ executed by the petitioners is common, and that is the reason why the sale notice was published bringing all three properties to sale simultaneously. It is submitted that the petitioners and late Pennamma were guarantors for loans availed by each other, and there is absolutely no illegality in the steps taken by the bank. It is submitted that the law laid down in Karthiyayani Amma (supra) does not apply to the facts of this case. It is further submitted that the bank has no objection to granting some reasonable instalments to the petitioners to clear the liability.

4. Having heard the learned counsel appearing for the petitioners and the learned counsel appearing for the respondent bank, I find that the contention taken by the petitioners based on the law laid down in Karthiyayani Amma (supra) cannot come to the aid of the petitioners. In Karthiyayani Amma (supra), this Court considered the question as to whether a common attachment could be made in respect of three separate loans. It was held that, since the attachment was made for the aggregate of the sums due from three separate persons, such attachment cannot be sustained, and it was the right of each borrower to get the attachment over his property lifted on payment of the amount due from him. In the facts of the present case, also, admittedly, the loans availed by the petitioners are separate. However, the ‘Gehan’ executed by them is common, and petitioners 1 and 2 and late Pennamma are guarantors to each other. Since the ‘Gehan’ is common and since the petitioners/Late Penamma are also guarantors to each other, all three properties are liable to be proceeded against simultaneously. In that view of the matter, the right of redemption is also not affected. In such circumstances, no prejudice whatsoever is caused to the petitioners by bringing the properties to sale by publishing a common sale notification.

5. Faced with this situation, the learned counsel appearing for the petitioners would submit that the petitioners may be permitted to clear the liability in some instalments.

6. The learned counsel appearing for the respondent bank submits that the total outstanding liability in respect of all three loans availed by the petitioners, as on 28-02-2026, is Rs.50,97,714/- and separately it is as follows: