Dismissed

Malathi v. the Catholic Syrian Bank Ltd.

Kerala HC24 Sept 2012WP(C)/19697/2012

Case brief

AI extract

What is this about?

The High Court dismissed a writ petition challenging the Debt Recovery Tribunal's orders rejecting an application to set aside an auction sale. The court held the application was barred by time limits under Rule 60 of the Income Tax Act and the petitioner failed to deposit required amounts.

What did the court decide?

Writ petition dismissed; no interference with the orders of the Recovery Officer and Debt Recovery Tribunal.

Malathi Vs the Catholic Syrian Bank Ltd. — Banking and Recovery | Kerala HC (2012)

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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 ANTONY DOMINIC

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MONDAY, THE 24TH DAY OF SEPTEMBER 2012/2ND ASWINA 1934

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WP(C).No. 19697 of 2012 (J)

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OA.672/1999 of DEBT RECOVERY TRIBUNAL, ERNAKULAM

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PETITIONER(S):

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MALATHI, AGED 61 YEARS W/O.RADHAKRISHNAN, MANDAKULANGARA HOUSE PATTIKAD P.O., PEECHI VILLAGE, EDAPPALAM DESOM THRISSUR DISTRICT.

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BY ADVS.SRI.E.N.VISHNU NAMBOODIRI

SRI.N.N.ELAYATH

SRI.S.P.SURESH KUMAR

RESPONDENT(S):

THE CATHOLIC SYRIAN BANK LTD. REPRESENTED BY ITS MANAGER, NENMARA BRANCH PALAKKAD DISTRICT, PIN-678508.

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THE CHIEF MANAGER

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CATHOLIC SYRIAN BANK LTD., ZONAL OFFICE, ERNAKULAM PIN-682011.

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S.ANIRUDHAN,

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S/O.SIDDARTHAN, 'SURIYA', ANCHUMOORTHI MANGALAM P.O., VADAKKANCHERY, PALAGHAT DISTRICT PIN-679301.

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K.K.HARIDAS,

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S/O.KOCHAKKAN, KARIYAM PARAMBIL HOUSE P.O.MAROTTIKKAL, THRISSUR DISTRICT, PIN-680014.

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UNION OF INDIA REPRESENTED BY ITS SECRETARY, FINANCE DEPARTMENT PARLIAMENT, NEW DELHI-110001.

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BY ADV. SRI.P.PARAMESWARAN NAIR,ASG OF INDIA BY SRI.C.A. JOY

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 24-09-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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W.P.(C).19697/12

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APPENDIX

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PETITIONER(S) EXHIBITS

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EXHIBIT P1: TRUE COPY OF THE KAICHIT DATED 1.8.2006 BETWEEN PETITIONER AND 3RD RESPONDENT

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EXHIBIT P2: TRUE COPY OF THE SALE AGREEMENT DATED 16.7.2008 ENTERED INTO BETWEEN THE PETITIONER AND THE 3RD RESPONDENT

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EXHIBIT P3: TRUE COPY OF THE COMPLAINT DATED 31.5.2011 FILED BY THE PETITIONER BEFORE THE SUPERINTENDENT OF POLICE, THRISSUR

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EXHIBIT P4: TRUE COPY OF THE I.A.NO.1359/2010 IN O.A.NO.672/1999 FILED BY THE PETITIONER BEFORE THE DEBT RECOVERY TRIBUNAL, ERNAULAM

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EXHIBIT P5: TRUE COPY OF THE I.A. NO.1360/2010 IN O.A.NO.672/199 FILED BY THE PETITIONER BEFORE THE XDEBT RECOVERY TRIBUNAL, ERNAKULAM

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EXHIBIT P6: TRUE COPY OF THE COMMON ORDER DATED 12.7.2010 IN I.A.NO.1359/2010 AND I.A.NO.1360/2010 IN O.A.NO.672/1999 PASSED BY THE DEBT RECOVERY TRIBUNAL, ERNAKULAM.

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EXHIBIT P7: TRUE COPY OF THE FINAL ORDER DATED 17.7.2012 PASSED BY THE DEBT RECOVERY TRIBUNAL, ERNAKULAM.

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/true copy/ PA To Judge

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ANTONY DOMINIC, J

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W.P.(C).19697/2012

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Dated this the 24^th day of September, 2012

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JUDGMENT

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25 cents of land belonging to the 3^rd respondent was mortgaged to the 1^st respondent Bank. Default was committed by the 3^rd respondent and the Bank filed O.A.672/1999 before the Debt Recovery Tribunal, Ernakulam. Pursuant to the orders passed by the Tribunal, 25 cents of land mentioned above was sold in auction on 6.4.2010. Sale was confirmed on 11.5.2010.

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According to the petitioner, on 16.7.2008, she had entered into Ext.P2 agreement for sale of the property in her favour with the 3^rd respondent. It is also her case that she paid substantial amounts to the 3^rd respondent also. On the strength of Ext.P2 agreement, she filed Exts.P4 and P5 to get herself impleaded in the proceedings before the DRT and also to get the sale set aside. Those applications were rejected by the Recovery Officer as per Ext.P6 order. It appears that by Ext.P6, the Recovery Officer also rejected two similar applications filed by the 3^rd respondent.

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W.P.(C).19697/12

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Therefore, the 3^rd respondent filed an appeal to the Tribunal as provided under Section 30 of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (in short 'the Act'). That appeal was considered and rejected by the Tribunal as per Ext.P7 order. It is challenging Exts.P6 and P7, the writ petition is filed.

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The right of the petitioner to apply to set aside the sale is as provided in Rule 60 of the 2^nd schedule to the Income Tax Act. This Rule provides that where an immovable property has been sold, defaulter or any person whose interest are affected by the same, may at any time within 30 days from the date of sale, apply to the Recovery Officer to set aside the sale. Rule provides for two conditions for entertaining such an application. First one is that the amount specified for the certificate of recovery for the recovery of which sale has been conducted, shall be deposited. Second condition is that for payment to the purchaser as penalty, a sum equal to 5% of the purchase money, shall also be deposited.

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W.P.(C).19697/12

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Ext.P6 order shows that the auction was held on 6.4.2010 and sale was confirmed on 11.5.2010. The petitions filed by the petitioner were received in the Office of the Recovery Officer only on 3.6.2010. Evidently therefore, the applications were made to the Recovery Officer, the authority designated to entertain the application under Rule 60, much beyond the period of 30 days as provided in Rule 60.

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It is true that the petitioner has a case that the applications were made on 5.5.2010. However, Ext.P6 order itself show that the applications made were defective and after curing the defect, were received in the Office of the Recovery Officer only on 6.10.2010. In such circumstances, filing of a defective application will not render the application maintainable, so long as the defect free application was received by the competent authority only after statutorily prescribed period had expired. Therefore, the first condition prescribed in Rule 60 has not been satisfied by the petitioner.

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W.P.(C).19697/12

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Petitioner has no case of having deposited either the amount or the penalty as prescribed in Rule 60. Therefore, that condition also was not satisfied by the petitioner. In such a situation, I do not find anything illegal in Ext.P6 warranting to be interfered with.

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That apart, against Ext.P6 order, petitioner had a remedy under Section 30 of the Act. In fact, the principal debtor, the 3^rd respondent, had availed of such a remedy also. Petitioner did not avail of such a remedy.

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For the aforesaid reasons, I am not persuaded to interfere either with Ext.P6 or Ext.P7.

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Writ petition is dismissed.

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Sd/- ANTONY DOMINIC, JUDGE

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mrcs

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/true copy/ PA To Judge

Malathi v. the Catholic Syrian Bank Ltd.

Case brief

What is this about?

What did the court decide?

Malathi v. the Catholic Syrian Bank Ltd.

Case brief

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