Dismissed

Mary Joseph v. the District Collector

Kerala HC20 Dec 2010WP(C)/15862/2010

Case brief

AI extract

What is this about?

Petitioners challenging possession proceedings under SARFAESI Act claim title via an unregistered sale deed executed after the mortgage. Court finds sale deed dates after mortgage creation, rejects argument on lack of notice, and dismisses petition noting non-compliance with interim order.

What did the court decide?

Writ petition dismissed; petitioner not permitted to interdict possession proceedings initiated under SARFAESI Act by respondent Bank.

Mary Joseph Vs the District Collector — 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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MONDAY, THE 20TH DECEMBER 2010 / 29TH AGRAHAYANA 1932

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WP(C).No. 15862 of 2010(G)

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

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PETITIONER(S):

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1. MARY JOSEPH @ CELIN, D/O.P.D.JOSEPH, FLAT NO.S, FIFTH FLOOR, DOOR NO.C.C.NO.39/3018 C-2, DEWANS CHAMBER, DIWANS ROAD, ERNAKULAM DISTRICT.

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2. C.S.VINOD, S/O.SIVADAS, KIZHUPILLIL HOUSE, CHERUMUTTAPUZHAKKARA, KAKKANAD P.O, ERNAKULAM DISTRICT.

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BY ADV. SRI.K.R.VINOD

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RESPONDENT(S):

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1. THE DISTRICT COLLECTOR, COLLECTORATE, ERNAKULAM.

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2. THE COMMISSIONER OF POLICE, KOCHI CITY.

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3. THE TAHSILDAR, KANAYANNOOR TALUK.

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4. THE AUTHORISED OFFICER, AIG HOME FINANCE INDIA LIMITED, KALYANI TOWER, 2ND FLOOR, DESHABIMANI JUNCTION, KALOOR, ERNAKULAM.

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5. GLADIS JOSEPH, W/O.FRANCIS GEORGE, LIG NO.841, LIG PANAMPILLY NAGAR, COCHIN-36.

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BY ADVS. SRI.RAJESH THOMAS, SC FOR R4

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SRI.C.P.RAVIKUMAR FOR R5 SRI.BIJOY CHANDRAN, GOVERNMENT PLEADER

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 20/12/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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ami/

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C.K. ABDUL REHIM, J

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WP(C) NO. 15862 OF 2010

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Dated this the 20^th day of December, 2010

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JUDGMENT

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The first petitioner claims to be a tenant residing in an apartment which is sought to be taken over possession in a proceeding initiated under Section 13(4) of the Securitisation and Reconstruction of Financial Assests and Enforcement of Security Interest Act, 2002 (SARFAESI Act). The 5^th respondent had availed a loan from the 4^th respondent Bank by mortgaging the above said apartment. The second petitioner now claims ownership of the said apartment on the basis of Ext.P2 document, which is alleged to have been executed by a power of attorney holder of the 5^th respondent. The averments contained in the Writ Petition does not reveal as to whether Ext.P2 sale deed was registered or not. According to the petitioners, the second petitioner is the absolute owner of the said apartment and the encumbrance was created without his knowledge. It is

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WP(C) No. 15862/2010

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further stated that the petitioners are not in a position to approach the Debt Recovery Tribunal since no notices pertaining to the recovery steps were issued to them by the 4^th respondent.

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It is noticed that at the instance of the 4^th respondent the first respondent had now issued an order exercising power under Section 14(1), directing the Tahsildar to take over possession of the property. Admittedly the loan in question was availed by the 5^th respondent in the year 2000. Even assuming, without admitting, that any valid title was created in favour of the second petitioner by virtue of Ext.P2 sale deed, it is evident that the said document is dated 05.03.2005 only i.e., after creation of the mortgage. Therefore I find no reason to permit the petitioners to interdict in any manner with the proceedings now initiated at the behest of the 4^th respondent Bank.

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However, as a gesture of indulgence, this Court

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WP(C) No. 15862/2010

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had issued an interim order on 12.11.2010 directing the respondents to keep in abeyance dispossession of the petitioner from the apartment in question, subject to condition of the petitioner remitting a sum of Rs.3 lakhs within three weeks thereof. It is reported that the stipulations contained therein has not so far been complied with.

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Under the above mentioned circumstances, it is not proper and justified for this Court in interfering with the proceedings, which is legally initiated under the provisions of the SARFAESI Act.

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The Writ Petition does not deserves merit and the

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same is accordingly dismissed.

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C.K. ABDUL REHIM JUDGE

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dnc

Mary Joseph v. the District Collector

Case brief

What is this about?

What did the court decide?

Mary Joseph v. the District Collector

Case brief

What is this about?

What did the court decide?

What the court decided

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Statutes considered

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