Disposed

Arun Kumar.K v. M/S. Indian Bank

Kerala HC30 Aug 2016OP(C)/2134/2016

Case brief

AI extract

What is this about?

In a writ petition under Article 227 challenging a court sale notice in execution proceedings, the High Court held that since the petitioner was not a party to the original suit and had not exhausted remedies in the execution court, Article 227 jurisdiction was not invoked. The Court directed the petitioner to file a claim application within one week, keeping the sale in abeyance, and directed the

What did the court decide?

Petitioner permitted to file application in execution court within one week; sale under Ext.P5 kept in abeyance if application filed; execution court to decide within two months.

Arun Kumar.K Vs M/S. Indian Bank — Property and Title | Kerala HC (2016)

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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 K.RAMAKRISHNAN

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TUESDAY, THE 30TH DAY OF AUGUST 2016/8TH BHADRA, 1938

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OP(C).No. 2134 of 2016 (O)

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O.S.106/2014 OF SUB COURT, ERNAKULAM.

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PETITIONER:

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ARUN KUMAR.K, MADHAVI NIVAS, KANNANKULANGARA, THRIPUNITHURA P.O., ERNAKULAM

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BY ADV. SRI.SUNIL JACOB JOSE

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RESPONDENT(S):

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1.M/S.INDIAN BANK,

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ZONAL OFFICE, ERNAKULAM, COCHIN- 682 016, REPRESENTED BY ITS AUTHORISED OFFICER.

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2.K.S.RAMACHANDRAN,

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SARASWATHI NILAYAM, SHANKAR NAGAR, KANNADIKAD, MARADU P.O, COCHIN- 682 304.

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3.C.P PRATHAPAN,

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CHULLUTHARAYIL HOUSE, SWATHIKRISHNA, THIRUVANKULAM, ERNAKLAM DISTRICT- 682 304.

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R1 BY ADV.SRI.S.EASWARAN

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THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 30-08-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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mbr/

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OP(C).No. 2134 of 2016 (O)

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APPENDIX

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PETITIONER(S)' EXHIBITS:

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EXHIBIT	P1	: PHOTOCOPY OF THE NOTICE DATED 1-2-	TENDER CUM AUCTION SALE 2016 OF THE 1ST RESPONDENT.
EXHIBIT	P2	: PHOTOCOPY OF THE THE 1ST RESPONDEN	COMMUNICATION DATED 9-3-2016 OF T.
EXHIBIT	P3	: PHOTOCOPY OF THE DATED 18-03-2016	CERTIFICATE OF SALE ISSUED BY THE 1S RESPONDENT.
EXHIBIT	P4	: PHOTOCOPY OF THE	TAX RECEIPT.
EXHIBIT	P5	: PHOTOCOPY OF THE	SALE NOTICE DATED 11-08-2016.

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RESPONDENT(S)' EXHIBITS:

NIL

//TRUE COPY//

P.S. TO JUDGE

mbr/

K. RAMAKRISHNAN, J.

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O.P.(C).No.2134 of 2016

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....................................................... Dated this the 30^th day of August, 2016.

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JUDGMENT

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This petition is filed by the petitioner challenging Ext.P5 sale notice of Sub Court, Ernakulam in E.P.No.27/2015 in OS.No.106/2014 under Article 227 of the Constitution of India.

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It is alleged in the petition that the second respondent availed financial facilities from the first respondent bank by mortgaging 1.86 Ares of land in Sy.No.105/5 and 0.31 Ares in Sy.No.105/6 Thekkumbhagom village. Since he failed to pay the amount, proceedings were initiated under the Provisions of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (hereinafter referred to as 'the SARFAESI Act') and Ext.P1 auction notice was issued under the provisions of the SARFAESI Act. The petitioner participated in the auction and sale was confirmed in his favour as per Ext.P2. Sale certificate was issued as per Ext.P3 dated 18.3.2016. The property was registered in the name of the petitioner as document No.967/1/16 of SRO Tripunithura evidenced by Ext.P4. The petitioner has been in possession of the property. While so, on 24.8.2016, he came to know that a notice has been pasted in the compound wall of his property and on enquiry, it was revealed that it was a sale notice issued by the court in EP.No.27/2015 in OS.No.106/2014. The sale notice issued is produced as Ext.P5. It

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O.P.(C).No.2134 of 2016 2

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was understood that there was some transaction between the second respondent and the third respondent in respect of the sale of the property on the basis of an agreement said to have been entered into between them dated 27.8.2013 for a consideration of Rs.6 lakhs per cent and paid Rs.10 lakhs as advance. Since he did

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not comply with that condition, the suit was filed for specific performance of contract sale and in the alternative for return of advance amount with interest. The matter was settled in the mediation and settlement entered into between the parties whereby the second respondent has agreed to pay Rs.11,50,000/- within two months from 17.10.2014 with interest. Since the amount was not paid, the third respondent filed the above execution petition and got the property for sale. Since the petitioner is not a party to the proceedings, he has no other remedy except to approach this court seeking the following reliefs:

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1. direct the court below not to proceed with the sale of the 1.86 Ares of land in Sy.No.105/5 and 0.31 Ares in Sy.No.105/6 of Thekkumbhagam village pursuant to Ext.P5 notice or otherwise;

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2. hold that the 1.86 Ares of land in Sy.No.105/5 and 0.31 Ares in sy.No.105/6 of Thekkumbhagam village covered by Ext.P5 notice is not liable to be sold n execution of the consensus decree in O.S.No.106/2014 of he Subordinate Court, Ernakulam.

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Heard Sri.Sunil Jacob Jose, learned counsel appearing for

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O.P.(C).No.2134 of 2016

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the petitioner and Sri. S. Easwaran, learned counsel appearing for the first respondent.

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Since this court felt that the petition can be disposed of at the admission stage itself, notice to respondents 2 and 3 is dispensed with.

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Learned counsel for the petitioner submitted that since he could not get a breathing time to file an application before the court below by making claim over the property, he had approached this court under Article 227 of the Constitution of India.

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The standing counsel for the first respondent submitted that they have no role in the proceedings as the mortgage was prior to the agreement and they have enforced the mortgage by sale of the property.

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It is an admitted fact that the petitioner is not a party to proceedings in OS.No.106/2014 which was filed by the third respondent against the second respondent on the basis of an agreement of sale said to have been entered into between them in respect of the property, which the petitioner obtained in the auction held by the first respondent by enforcing the mortgage as per the provisions of the SARFAESI Act. It is thereafter that he came to know about Ext.P5 sale notice. If the petitioner is aggrieved by Ext.P5 notice, his remedy is to approach the execution court staking his claim for the property and convincing the execution

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O.P.(C).No.2134 of 2016

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court that the second respondent has no saleable right in the property, which has not been done. Without exhausting that remedy, the petitioner has approached this court under Article 227 of the Constitution of India. As no impugned order has been passed by the court below, the legality of which cannot be gone into under the supervisory jurisdiction of this court under Article 227 of the Constitution of India. So the petition is disposed of as follows:

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The petitioner is permitted to file an application before the execution court under the relevant provisions of Order 21 or any other provision under the Code of Civil Procedure staking his claim over the property and if such an application is filed, then the execution court is directed to expedite the disposal of that application. A week's time is granted to the petitioner to file an application before that court. Till the filing of that application and disposal of that application, this court feels that sale as per Ext.P5 has to be kept in abeyance. So if the petitioner files an application within a week, then the execution court is directed to expedite the disposal of that application after giving an opportunity to both the parties and dispose of the same in accordance with law within a period of two months of filing of such an application. Till then, the sale proposed to be conducted as per Ext. P5 is directed to be kept in abeyance. If the petitioner did not file an application

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O.P.(C).No.2134 of 2016

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within a week, then the court below is at liberty to proceed with sale as per Ext.P5 on the same sale proclamation.

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With the above directions and observations, this petition is disposed of. Registry is directed to communicate a copy of this judgment to the court below at the earliest.

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Sd/-

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K. RAMAKRISHNAN, JUDGE.

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Arun Kumar.K v. M/S. Indian Bank

Case brief

What is this about?

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Arun Kumar.K v. M/S. Indian Bank

Case brief

What is this about?

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