Dismissed

Shahul Hameed v. Naseembanu

Kerala HC21 Jul 2011Mat.Appeal/862/2010

Case brief

AI extract

What is this about?

The High Court of Kerala dismissed the husband's appeal against the lower court's refusal to grant a temporary injunction. The husband challenged property transfers made by his wife and sought to prevent transfer by the State Bank of India in recovery proceedings, but the court found no merit.

What did the court decide?

Appeal dismissed; temporary injunction not granted; claim for order to ensure home is not disturbed rejected.

Shahul Hameed Vs Naseembanu — Matrimonial and Divorce | Kerala HC (2011)

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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 THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN

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THURSDAY, THE 21ST JULY 2011 / 30TH ASHADHA 1933

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Mat.Appeal.No. 862 of 2010(C) -----------------------------------------[AGAINST THE ORDER DATED 05/10/2010 IN IA .NO.4807/2010 IN OP.NO.1257/2010 OF FAMILY COURT,THRISSUR]

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PETITIONER/PETITIONER:

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

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SHAHUL HAMEED, S/O.NALAKATH PUZHANGARAVEETTIL, N.P.ABDUTTY, PADOOR DESOM, CHAVAKKAD TALUK, THRISSUR DISTRICT, THROUGH POWER OF ATTORNEY HOLDER, SHAFAF SHAHUL N.P, S/O.SHAHUL HAMEED, NALAKATH PUZHANGARA HOUSE, PADOOR DESOM, KUNDAZHIYOOR VILLAGE, CHAVAKKAD TALUK, TRISSUR DISTRICT.

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BY ADV. SRI.JIJO PAUL.

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RESPONDENTS/RESPONDENTS:

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

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1. NASEEMBANU, D/O.MAMBRANATH MUHAMMADALI, THOYAKKAVU DESOM, KUNDAZHIYOOR VILLAGE, CHAVAKKAD TALUK, THRISSUR DISTRICT - 680 506.

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2. ASHRAF, S/O.KALLUVALAPPIL UMMER, EDAKKAZHIYUR AMSOM AND DESOM, CHAVAKKAD TALUK, THRISSUR DISTRICT - 680 506.

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*3. AMEENULLA,

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*S/O.PANIKKAVEETTIL SAIDU MUHAMMED, PALUVAI ROAD, KUNDAZHIYUR VILLAGE, CHAVAKKAD TALUK, THRISSUR DISTRICT - 680 506. (DELETED)

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*NAME OF THE 3RD RESPONDENT IS DELETED FROM THE PARTY ARRAY AT THE RISK OF THE APPELLANT AS PER ORDER DT. 28/02/2011 IN I.A. NO.589/2011.

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MAT APPEAL NO.862/2010-C:

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4. STATE BANK OF INDIA, IRINJALAKUDA AMSOM AND DESOM, MUKUNDAPURAM TALUK, THRISSUR DISTRICT - 691 585.

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R2 BY ADVS. SRI.M.RAJAGOPALAN, SRI.RAJIT, SRI.M.L.SURESH KUMAR, SRI.RANJIT BABU, SRI.V.V.JOY, SRI.LOWEL CHERIAN, R4 BY SRI.K.K.CHANDRAN PILLAI, SENIOR ADVOCATE, ADVS. SRI.THOMAS JAMES MUNDACKAL, SRI.BOBBY THOMAS.

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THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 21/07/2011,THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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prv.

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Thottathil B.Radhakrishnan

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N.K.Balakrishnan, JJ.

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= = = = = = = = = = = = = = = = = = = = = = = =

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Mat.Appeal No.862 of 2010-C

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= = = = = = = = = = = = = = = = = = = = = = = = Dated this the 21^st day of July, 2011.

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Judgment

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Thottathil B.Radhakrishnan, J.

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1.This appeal is by the husband of the first respondent. The parties continue as a couple. They have four children. He challenges the refusal of the court below to issue an order of temporary injunction against dispossessing him and children from a residential building and the land.

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2.The appellant, an NRI, says that he has such status for the last 30 years. He had given a power of attorney to his wife to manage the affairs of his properties. The wife is shown to have transferred an item of property on 2.2.2007

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MA862/10 -: 2 :-

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to the second respondent, who is the husband of her niece. He, in turn, transferred that property on 5.12.2008 to the first respondent, that is, the appellant's wife and POA. Thereafter, on 23.7.2009, she sold it to her sister's husband, the third respondent. That document shows a consideration of more than Rs.55 lakhs.

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3.The fourth respondent is the State Bank of India. It had extended to the third respondent a facility. That loan for Rs.42,32,000/- was for purchase of the aforesaid building and twenty cents from the appellant's wife, the first respondent. The Bank took the aforesaid property as a collateral security. The loan remained unpaid. Action for recovery was in the offing. It is in this context that the appellant husband sued the wife and her transferees who are relatives of the couple, challenging the transaction by his wife on the strength of the POA and the subsequent transactions. In effect, injunction was sought against the dispossession

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MA862/10 -: 3 :-

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by Bank in course of recovery of dues. The appellant sued the respondents as if it is for an order to ensure that the home in the plaint schedule property is not disturbed. He sought an order of temporary injunction that he and the children may not be disturbed or thrown out of possession from the building.

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4.By now, securitisation proceedings under the SARFAESI Act has reached the stage where a commissioner has been appointed by the competent Magistrate in exercise of power under Section 14 of that Act. Obviously, any measure under the SARFAESI Act could be subjected to a securitisation application before the Debts Recovery Tribunal in terms of Section 17 of that Act. This position notwithstanding, the learned counsel for the appellant says that this Court may also have jurisdiction. We do not express anything on the merits of that plea, having regard to the binding precedents of the Apex Court and also some of the decisions of this

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MA862/10 -: 4 :-

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Court.

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5.At this juncture, we have to note that relief is sought for only against the third respondent and the bank. No such relief is sought for as against the first respondent-wife. Even if we are inclined to take the view that the litigation is bonafide and not a collusive one at the instance of the appellant and respondents 1 to 3 to defeat the interest of the fourth respondent bank, we stand advised by the provisions of the Specific Relief Act and the SARFAESI Act that there could be no injunction restraining securitisation proceedings. There is also bar to civil jurisdiction. What cannot be sustained legally cannot be pushed through under the cover of the proceedings from which this appeal arises. At any rate, judicial discretion in such matter ought not to be exercised against the interest of public funds, which Banks deal with. All these provisions stand to advise that the claim of the appellant for an order of

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MA862/10 -: 5 :-

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temporary injunction needs to be strictly scrutinized.

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6.In so far as prima facie case is concerned, the appellant does not dispute the fact that he had given a power of attorney to the wife. The wife allegedly utilized that power of attorney to transfer the property to the second respondent, her niece's husband. She herself purchased it back from the second respondent and later, sold it to the third respondent, her brother-in-law. For that, the third respondent obtained the loan from SBI and the cheque was encashed by the first respondent through her banker as stated in the counter affidavit filed by the Bank before us.

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7.The lawful act of a power of attorney has all the trappings of an agency and therefore, we are not inclined to hold that the appellant does not have alternate efficacious remedy even against any abuse of the power of attorney by the wife. Irreparable injury is not, therefore,

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MA862/10 -: 6 :-

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established.

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8.Balance of convenience weighs heavily in favour of the fourth respondent, State Bank of India, a public sector banking institution which deals with public funds.

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9.We are also not persuaded by the submission on behalf of the appellant that the person, who was the Manager of the Branch of the bank at the relevant time, is involved in around 12 cases registered by the Central Bureau of Investigation touching different transactions. We do not take it that the suggestion is that there could be one more criminal case at the instance of the SBI on fraud and allied charges, against the parties to this litigation. At any rate, that is no defence against the demand of the bank on the basis of its books of accounts which essentially generates rights referable to the law of contracts and banking.

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MA862/10 -: 7 :-

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For the aforesaid reasons, we do not find any merit in this appeal. The same is accordingly dismissed. We refrain from imposing an order for costs.

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Sd/Thottathil B.Radhakrishnan, Judge.

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Sd/N.K.Balakrishnan, Judge.

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Sha/2607

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-true copy-

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P.S.to Judge.

Shahul Hameed v. Naseembanu

Case brief

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Shahul Hameed v. Naseembanu

Case brief

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