Dismissed

Thilothamma.K & Anr. v. Sreenivasan & Others

Kerala HC13 Aug 2013WA/2235/2009

Case brief

AI extract

What is this about?

Held that a sale via SARFAESI auction is not invalidated by an attachment before judgment occurring after the mortgage. The Court declined to intervene regarding undervaluation or procedural irregularities, directing the aggrieved parties to approach the appropriate forum under Section 17 of the SARFAESI Act.

What did the court decide?

The relief sought by the appellants to set aside the sale and grant other directions was declined.

Thilothamma.K & Anr. Vs Sreenivasan & Others — Banking and Recovery | Kerala HC (2013)

¶1

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶2

PRESENT:

¶3

THE HON'BLE THE CHIEF JUSTICE DR. MANJULA CHELLUR &

¶4

THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN

¶5

TUESDAY, THE 13TH DAY OF AUGUST 2013/22ND SRAVANA, 1935

¶6

WA.No. 2235 of 2009 ( ) IN WP(C).22860/2009 --------------------------------------------AGAINST THE ORDER/JUDGMENT IN WP(C) 22860/2009 DATED 16-09-2009

¶7

APPELLANTS/APPELLANT:

¶8

1. THILOTHAMMA.K & ANR. RESIDING AT MITHILA TC 46/314 (2), PARITHIKUZHY POONTHURA, THIRUVANANTHAPURAM.

¶9

2. KSHEMACHANDRAN, S/O.KRISHNANKUTTY

¶10

RESIDING AT MITHILA TC 46/314 (2), PARITHIKUZHY

¶11

POONTHURA, THIRUVANANTHAPURAM.

¶12

BY ADVS.SRI.N.N.SUGUNAPALAN (SR.)

¶13

SRI.S.SUJIN

¶14

RESPONDENTS:

¶15

1. SREENIVASAN & OTHERS WORKING AS ASSISTANT OFFICER (AOA) GROUND SUPPORT DEPARTMENT, AIR INDIA, TRIVANDRUM RESIDING AT VANIYANVILA HOUSE, VETTUVENI MARTHANDAM PO, KANYAKUMARI DISTRICT, TAMIL NADU.

¶16

2. THE AUTHORISED OFFICER HDFC LTD, HDFC HOUSE, VAZHUTHACAD THIRUVANANTHAPURAM.

¶17

3. T.JAYASREE, D/O.THANKAN AYTHIVILAI, NATTALAM PO, VILAVANKODE KANYAKUMARI DESOM, TAMIL NADU.

¶18

4. THE BRANCH MANAGER THE SOUTHE INDIAN BANK LTD, MARTHANDAM BRANCH MARTHANDAM PO, KANYAKUMARI DISTRICT, TAMIL NADU.

¶19

R BY SRI.GEORGE VARGHESE

¶20

THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 13-08-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

¶21

Manjula Chellur, C.J. & K.Vinod Chandran, J.

¶22

Writ Appeal No. 2235 of 2009 -------------------------------------------Dated this, the 13^th day of August, 2013

¶23

J U D G M E N T

¶24

Manjula Chellur,C.J.:

¶25

The appellants, who are unsuccessful before the learned Single Judge approached this Court contending that they filed O.S No. 871/07 against the first respondent for realisation of money due from them and sought attachment of property in question before judgment. Therefore, the public auction held by the 2^nd respondent Bank wherein 3^rd respondent purchased the property, was alleged to be not valid, on account of attachment before the judgment in a suit by the Civil Court. They also contend that the property when brought for public auction by the 2^nd respondent bank was undervalued, therefore, this Court must intervene and grant the following reliefs:-

¶26

(i) Issue a writ of certiorari or any other appropriate writ, order or direction setting aside the sale conducted on 15.6.2009 by the 2^nd respondent in favour of the 3^rd respondent as per Ext.P6 and also quashing Ext.P6

¶27

(ii) Issue a writ of mandamus or any other appropriate writ, order or direction directing the

¶28

W.A NO.2235/2009 :2:

¶29

2^nd respondent to conduct re-sale of the property shown against item No.1 in Ext.P5 notification, or in the alternative to permit the petitioner to purchase the said property on payment of Rs.30 lakhs and to pay off the 2^nd respondent's claim in Ext.P5, out the said amount;

¶30

(iii) Issue a writ of mandamus or any other appropriate writ, order or direction dire ting the 2^nd respondent to execute sale deed/sale certificate in favour of the petitioners on they paying the amount claimed by the 2^nd respondent covered by item No.1 in Ext.P5 notice.

¶31

(iv) To direct the respondents not to transfer or execute any sale deed or sale certificate concerning the properties mentioned in item No.1 in Ext.P5 to anybody other than the petitioners, pending disposal of the writ petition, and grant such other and further reliefs as this Hon'ble Court may deem fit.

¶32

The material brought on record indicates the property

¶33

sold in public auction in favour of the 3^rd respondent was earlier mortgaged to the second respondent Bank by the first respondent and according to the 3^rd respondent she availed loan facility from 4^th respondent, another Bank, for purchasing the property in public auction. So far as the undervaluation and non-compliance of procedural formalities, the learned Single Judge was justified in saying, this Court cannot entertain factual

¶34

W.A NO.2235/2009 :3:

¶35

controversy under Article 226 and the parties have to approach the appropriate forum under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act 2002 (SARFAESI Act). Aggrieved by the same, the present appeal is filed, wherein the appellants again raise similar contention and further submits that the 3^rd respondent is none other than the daughter-in-law of the first respondent. Therefore, the sale of property in public auction is nothing but a collusion between the parties only to defraud the appellants and to see that they did not realise the fruits of the decree that may be obtained in Civil Court in its favour.

¶36

We heard both the parties and we have gone through the judgment of the learned Single Judge. It is not in dispute, the first respondent herein mortgaged the property to the 2^nd respondent bank for raising loan and the said loan became overdue. The property in question was mortgaged first in 2001 and then again in 2005 when loan amount was enhanced. The property was brought for sale in a public auction and was sold on 15.6.2009 under SARFAESI Act through the authorised officer. Later on, sale deed was executed on 16.7.2009 in favour of the

¶37

W.A NO.2235/2009 :4:

¶38

3^rd respondent. It is also not in dispute that over and above the dues payable to the Bank, there was an excess amount of Rs.2,94,528/- out of the sale price; after satisfaction of the entire dues to the Bank.

¶39

The question before us is whether the sale in favour of 3^rd respondent under SARFAESI proceedings is invalid on account of attachment before judgment of the property in question in a civil suit. Admittedly, the mortgage is much earlier to the date of attachment before judgment, as the date of attachment is 17.12.2007 and the two mortgages are of 2001 and 2005. Therefore, if the property was brought for sale by the secured creditor invoking provisions of SARFAESI Act, the sale proceedings undertaken by them will not be subject to the attachment before judgment obtained by the appellants in a civil suit as the said attachment is much later than the date of mortgages in favour of the respondent Bank. We are informed that the suit is still pending before the civil court. So far as the excess amount, it is always open to the appellants to bring the same to the notice of the civil court as the respondent Bank is also a formal party in the said proceedings. So far as the reliefs

¶40

W.A NO.2235/2009 :5:

¶41

sought in the present writ petition, to set aside the sale deed dated 15.6.2009 the learned Judge was justified in saying so far as procedural irregularities and also the undervaluation of the property, this Court cannot entertain those issues as the remedy available to the parties is clearly indicated under the SARFAESI Act itself, i.e, Section 17 of the Act.

¶42

In that view of the matter we decline to intervene and confirm the opinion of the learned Single Judge that the relief sought by the appellants cannot be entertained in a petition under Article 226 of the Constitution.

¶43

Sd/Manjula Chellur, Chief Justice

¶44

jma/13.08

¶45

Sd/K.Vinod Chandran, Judge.

¶46

//true copy//

¶47

P.A to Judge

Thilothamma.K & Anr. v. Sreenivasan & Others

Case brief

What is this about?

What did the court decide?

Thilothamma.K & Anr. v. Sreenivasan & Others

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Kerala State Road Transport Corporation Vs K.J. Michael

K.P.Gopidas Vs Dr.Thomas K.Koshy

Dr.Ruby R Vs State of Kerala

V.v.James Vs Ashokumar Singh

K.P Joseph Vs State of Kerala

E.Krishnan Namboodiri Vs the Travancore Devaswom Board