Allowed

George Joseph v. K.Anilakumari

Kerala HC1 Mar 2013OP(C)/756/2012

Case brief

AI extract

What is this about?

The Court held that a decree holder with a statutory charge over mortgaged property is entitled to recover dues from surplus sale proceeds before other creditors. Consequently, the bank's petition for rateable distribution was dismissed, and the petitioner's petition for attachment priority was allowed.

What did the court decide?

Order allowing rateable distribution in favor of the State Bank of Travancore set aside; petitioner allowed to realize decree amount from surplus; opposing petition dismissed.

George Joseph Vs K.Anilakumari — Execution and Attachment | Kerala HC (2013)

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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 THOMAS P.JOSEPH

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FRIDAY, THE 1ST DAY OF MARCH 2013/10TH PHALGUNA 1934

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OP(C).No. 756 of 2012 (O)

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E.A.NO.125/2011 IN E.P.NO.97/2010 IN O.S.NO.414/2009 OF ADDL.SUB COURT,KOTTAYAM

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PETITIONER(S):

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GEORGE JOSEPH, THEKKANATTU HOUSE, PERUMBAIKKATTUSSERY KARA, PERUMBAIKKADU VILLAGE, KOTTAYAM TALUK.

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BY ADVS.SRI.MATHEW JOHN SRI.DOMSON J.VATTAKUZHY

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RESPONDENT(S):

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1. K.ANILAKUMARI, SHANTHI BHAVAN, KARIPUZHA KARA AND VILLAGE,

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KOTTAYAM TALUK-686 001.

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2. THE MANAGER,

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PUNJAB NATIONAL BANK, KOTTAYAM BRANCH, LOGOS CENTRE, KOTTAYAM-686 001.

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3. THE STATE BANK OF TRAVANCORE, NEENDOOR BRANCH, NEENDOOR, KOTTAYAM-686 601

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REPRESENTED BY THE MANAGER.(THIS RESPONDENT IS MADE A RESPONDENT IN THE INSTANT WRIT PETITION THOUGH NOT A PARTY TO THE IMPUGNED ORDER SINCE THIS RESPONDENT IS THE BENEFICIARY OF THE IMPUGNED ORDER)

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R2 BY ADV. SRI.C.AJITH KUMAR R3 BY ADV. SRI.SATHISH NINAN

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THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 01-03-2013, ALONG WITH OPC. NO.2645/2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

sts

OP(C)NO.756/2012

APPENDIX

PETITIONER'S EXHIBITS:

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P1 COPY OF THE AFFIDAVIT AND PETITION FILED BY THE PETITIONER FOR ATTACHMENT IN O.S.NO.414 OF 2009 DATED 12/8/2009 BEFORE THE SUB COURT,KOTTAYAM

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P2 COPY OF THE OBJECTION FILED BY THE STATE BANK OF TRAVANCORE IN E.A.NO.125 OF 2011 IN OS.NO.414 OF 2009 DATED 6/6/2011

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P3 COPY OF THE AFFIDAVIT AND PETITION FILED BY THE PETITIONER IN O.A.NO.237 OF 2010 DATED 30/7/2011

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P4 COPY OF THE ORDER IN O.A.NO.237 OF 2010 DATED 31/10/2011 DRT ERNAKULAM

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P5 COPY OF THE ORDER IN E.A.NO.125 OF 2011 IN E.P.NO.97 OF 2010 IN O.S.NO.414 OF 2009 DATED 24/2/2012 ADDL.SUB COURT,KOTTAYAM

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RESPONDENT'S EXHIBITS: NIL

/TRUE COPY/

P.A.TO.JUDGE

sts

THOMAS P. JOSEPH, J.

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

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O.P.(civil) Nos. 756 and 2645 of 2012

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

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Dated this the 1^st day of March, 2013

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JUDGMENT

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Question arising for a decision in these original petitions is

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as to the correctness of Ext.P5, order on E.A. No.125 of 2011 in E.P. No. 97 of 2010 in O.S No. 414 of 2009 of the Sub Court, Kottayam as to rateable distribution of e surplus amount which was in the custody of the Punjab National Bank (for short “the PNB”) and brought to the Additional Sub Court, Kottayam.

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Petitioner in OP(C) No. 756 of 2012 sued the first respondent therein for a decree for refund of advance money paid to the first respondent pursuant to an agreement for sale. On the the first respondent remaining ex parte, the learned Sub Judge on 11.12.2009 has passed a judgment and decree in favour of petitioner in OP(C). 756 of 2012 whereby petitioner is permitted to realise Rs. 4,22,684/- with 6% interest from the date of suit till date of realisation on the principal sum of Rs. 4 lakhs and cost of the suit from the first respondent and her assets including the suit property (which was the subject matter of agreement for sale).

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O.P.(C) Nos. 756 of 2012 and 2645 of 2012

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-: 2 :-

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First respondent in O.P.(C) No. 756 of 2012 had availed a loan from the 3^rd respondent (petitioner in OP(C) No. 2645 of 2012 - hereinafter referred as the State Bank of Travancore - for short "the SBT"). It filed O.A No. 237 of 2010 in the Debt Recovery Tribunal (for short "the DRT) and obtained judgment in its favour on 15.11.2012. In the meantime, property which was originally mortgaged with the PNB was proceeded against by that bank under provisions of the SARFAESI Act and the said property was sold. The surplus in the sale price remained with the PNB. On 09.06.2010 as per order on I.A. No. 1596 of 2010 in O.A. No. 237 of 2010 of the DRT, the SBT obtained an order of injunction restraining the PNB and the Recovery Officer from disbursing the surplus amount.

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Petitioner in OP(C) No. 756 of 2012 filed E.P. No. 97of 2010 for execution of the decree in O.S. No. 414 of 2009 in the Sub Court, Kottayam on 27.01.2010 and on 03.10.2010 obtained attachment of the surplus amount which then remained with the PNB.

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On the application made by the SBT, learned Sub Judge has passed Ext.P5, order whereby rateable distribution is

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O.P.(C) Nos. 756 of 2012 and 2645 of 2012

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-: 3 :-

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ordered.

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Learned counsel for petitioner in O.P.(C) No. 756 of 2012 contends that finding of learned Sub Judge that the SBT is entitled to rateable distribution is erroneous. Learned counsel invited my attention to the statutory charge granted by the learned Sub Judge in the judgment and decree in O.S No.414 of 2009 in favour of petitioner. It is argued that in the absence of any charge or other security created in favour of the SBT over the property, question of rateable distribution would arise only after the decree in favour of petitioner in O.P.(C) No. 756 of 2012, in O.S No. 414 of 2009 is satisfied from the surplus amount. Learned counsel for the SBT argued that the order of injunction granted by the DRT enabled the SBT for a share in the surplus amount. Learned counsel has given me a copy of the judgment and decree in O.S No. 414 of 2009. There, it is specifically provided that petitioner in O.P.(C) No. 756 of 2012 can recover the amount from the first respondent and her assets including the suit property in O.S. No. 414 of 2009 (concerning which there was an agreement for sale between the petitioner and the first respondent). Under Sec. 55(vi)(b) of the Transfer of

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O.P.(C) Nos. 756 of 2012 -: 4 :- and 2645 of 2012

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Property Act (for short "the TP Act") the buyer is entitled a charge over the property in question unless he has improperly declined delivery of the property. In this case, it is pointed out by the learned counsel that petitioner filed O.S. No. 414 of 2009 for recovery of advance money for the reason that first respondent was not inclined to proceed with the agreement for sale. The judgment in O.S. No. 414 of 2009 does not say that petitioner has improperly declined to take the sale deed concerning the property. So far as the judgment and decree in O.S. No. 414 of 2009 stands, charge created over the property by the decree also would stand.

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Learned counsel for the SBT has raised a contention that possibility of the decree in O.S. No. 414 of 2009 being collusive cannot be ruled out. However, that question does not arise for a decision in this proceeding since as things stand now judgment and decree in O.S No. 414 of 2009 should stand.

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In so far as there is a statutory charge in favour of petitioner in O.P(C). No. 756 of 2012 which is recognised in the judgment and decree in O.S. 414 of 2009 as well, question of 3^rd respondent in OP(C) No. 756 of 2012 (petitioner in OP(C) No.

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O.P.(C) Nos. 756 of 2012 -: 5 :- and 2645 of 2012

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2645 of 2012) making a claim for rateable distribution in the surplus amount does not arise. Petitioner is entitled to realise the amount due under the decree in O.S No. 414 of 2009 from the surplus amount. The order of injunction passed by the DRT only restrains the PNB and its Recovery Officer from disbursing the surplus amount in the way prayed for in I.A. No. 1596 of 2010 (in O.A. No. 237 of 2010). That does not create a charge over the property.

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In the light of the above, Ext.P5, order allowing rateable disbursement in favour of the 3^rd respondent in OP(C) No. 756 of 2012 (Petitioner in OP(C) No. 2645 of 2012) cannot be upheld.

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Resultantly, these original petitions are disposed of as under:-

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1. O.P.(C) No. 756 of 2012 is allowed. Ext.P5, order allowing rateable distribution in favour of the 3^rd respondent (petitioner in O.P(C) No. 2645 of 2012) is set aside.

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1. It is found that petitioner in O.P(C) No. 756 of 2012 (decree holder in O.S. No. 414 of 2009 of the Sub

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O.P.(C) Nos. 756 of 2012 and 2645 of 2012

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-: 6 :-

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Court, Kottayam) is entitled to realise the amount due as per decree in O.S. No. 414 of 2009 of the Sub Court, Kottayam from the surplus amount deposited by the Punjab National Bank in the said court.

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1. In the light of the above, O.P(C) No. 2645 of 2012 stands dismissed.

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1. Parties shall suffer their cost.

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Sd/- THOMAS P.JOSEPH, JUDGE

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smv

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//True copy//

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P.A to Judge

George Joseph v. K.Anilakumari

Case brief

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George Joseph v. K.Anilakumari

Case brief

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