Partly allowed

M.Kumary v. Office of the Recovery Officer and 3 Ors.

Kerala HC14 Dec 2010OP (DRT)/1148/2010

Case brief

AI extract

What is this about?

The court disposed of a writ petition challenging an auction sale of the petitioner's mortgaged property. It directed the recovery officer to prioritize pending Income Tax Act applications questioning the sale's validity and kept delivery of possession in abeyance pending such orders. Relief granted.

What did the court decide?

Directing the 1st respondent to consider pending Income Tax Act applications within one month and keeping further steps for delivery of possession in abeyance.

M.Kumary Vs Office of the Recovery Officer and 3 Ors. — Banking and Recovery | Kerala HC (2010)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT :

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THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM

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TUESDAY, THE 14TH DECEMBER 2010 / 23RD AGRAHAYANA 1932

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OP (DRT).No. 1148 of 2010(O) -----------------------------------------[IA.NO.2602/2010 IN DRC.NO.1088/2000 IN OA.488/2002 OF DEBT RECOVERY TRIBUNAL, ERNAKULAM] ....................

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PETITIONER/3RD DEFENDANT:

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---------------------------------------------

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M. KUMARY, AGED 52 YEARS, D/O. MADHAVAN, KUNDUKATTIL HOUSE,KANIYARACODE.P.O, THIRUVILWAMALA, THRISSUR 94.

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BY SRI.V.CHITAMBARESH, SENIOR ADVOCATE, ADV. SRI.JOHN NUMPELI (JUNIOR).

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RESPONDENTS:

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------------------------

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1. OFFICE OF THE RECOVERY OFFICER, DEBTS RECOVERY TRIBUNAL, 8TH FLOOR, K.S.H.B BUILIDING, COCHIN -36.

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2. P.A, PREMKUMAR, AGED 40 YEARS, S/O. IYYAPPAN, PARAKKOTTIL HOUSE, KUTHAMPILLY.P.O,THIRUVILWAMALA, THRISSUR - 680 588.

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3. SRI.P.K. SUDHEER, S/O. KUNJU, PUTHIYAVEETTIL HOUSE, KOORKANCHERY, THRISSUR -680 007.

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4. CANARA BANK, REPRESENTED BY ITS MANAGER, S.S.I BRANCH, ATHANI, THRISSUR - 683 585.

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R4 BY SRI. PAULY MATHEW MURICKEN.S.C.

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THIS OP (DEBT RECOVERY TRIBUNAL) HAVING COME UP FOR ADMISSION ON 14/12/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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prv.

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C.K.ABDUL REHIM, J.

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O.P.(DRT).No.1148 of 2010

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Dated this the 14^th day of December, 2010

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J U D G M E N T

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The petitioner is a guarantor with respect to the loan availed by the 2^nd respondent from the 4^th respondent Bank. Consequent to default committed in repayment of amounts due under the loan account, the respondent bank had approached the Debts Recovery Tribunal and a Recovery Certificate was issued. In execution of the recovery certificate, the 1^st respondent had conducted sale of the immovable property belonging to the petitioner, which was mortgaged for securing the loan. The sale in question was conducted on 31.5.2010. According to the petitioner the property belonging to her described as item No.3 in Ext.P1 proclamation, was sold for a sum of Rs.5,10,000/-, which is far below the prevailing market value. It is alleged that the 3^rd respondent, who is the auction purchaser, had bid in auction the property in collusion with the 4^th respondent bank and that the property in question will worth at least an amount of Rs.4 lakhs per cent. It is mentioned that, immediately on coming to know about the sale, the petitioner had filed application under Rule 87 of the 2^nd schedule of Income Tax Act, 1961 as I.A.No.2602/2010 before the 1^st

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OP(DRT).1148/10 -2-

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respondent. The said application was dismissed as per Ext.P2 stating that the petitioner has not filed any proper application under Rule 60, 61 and 62 of the second schedule of Income Tax Act, 1961. On receipt of Ext.P2 the petitioner had filed further applications as I.A.No.3087/2010 under Rule 60, 61 & 62 of the second schedule, along with I.A.No.3086/2010 seeking stay of further proceedings pursuant to the sale. Copies of those applications are produced as Ext.P3 and P4. According to the petitioner the above said applications were already registered before the 1^st respondent and they are pending consideration and disposal. Under the above premise the petitioner is seeking direction to restrain further steps of recovery.

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Learned Standing Counsel appearing for 4^th respondent submitted that pursuant to the sale conducted, the 3^rd respondent had already remitted the entire sale consideration and that the sale certificate was already issued in favour of him, on 15.7.2010. According to the 4^th respondent Ext.P3 and P4 applications now filed before the 1^st respondent are not maintainable.

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Having considered the fact that the petitioner had submitted Ext.P3 and P4 before the 1^st respondent, I am of the view that the question raised therein including maintainability of such applications need be considered at the first instance by the

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OP(DRT).1148/10 -3-

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1^st respondent. I am of the further view that interest of justice will be served if 1^st respondent is directed to consider those applications on an early basis and till then further steps if any taken for delivery of possession of the property is directed to be kept in abeyance.

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Accordingly the writ petition is disposed of directing the 1^st respondent to consider and pass appropriate orders on Ext.P3 and Ext.P4, as early as possible, at any rate within a period of one month from the date of receipt of a copy of this judgment, after affording an opportunity of personal hearing to the petitioner as well as to respondents 3 and 4.

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Till such time orders are passed by the 1^st respondent as directed above, further steps for delivery of possession of the property in question shall be kept in abeyance, if not already delivered possession.

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C.K.ABDUL REHIM, JUDGE.

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okb

M.Kumary v. Office of the Recovery Officer and 3 Ors.

Case brief

What is this about?

What did the court decide?

M.Kumary v. Office of the Recovery Officer and 3 Ors.

Case brief

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What did the court decide?

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