Disposed

Gheevarghese Kuruvila v. Sunnykutty

Kerala HC21 Oct 2016OP(C)/2577/2016

Case brief

AI extract

What is this about?

High Court at Ernakulam, via OP. (C). No. 2577 of 2016, directed the Munsiff Court, Alappuzha, to fix the second respondent bank and advance the hearing of the injunction application within ten days, leaving questions of maintainability open.

What did the court decide?

Directed Munsiff Court to fix 2nd Respondent and advance hearing of IA No.3205/2016 to decide within ten days from Oct 28, 2016.

Gheevarghese Kuruvila Vs Sunnykutty — Banking and Recovery | 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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FRIDAY, THE 21ST DAY OF OCTOBER 2016/29TH ASWINA, 1938

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OP(C).No. 2577 of 2016 (O)

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OS NO.789/2016 OF MUNSIFF COURT, ALAPPUZHA

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

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PETITIONER/IST PLAINTIFF.:

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GHEEVARGHESE KURUVILA,

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S/O K.K.KURUVILA, CHELAKATH HOUSE, NARAKATHANI PO, VENNIKKULAM, MALLAPPALLY.

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BY ADVS.SRI.T.P.PRADEEP SRI.P.K.SATHEES KUMAR

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RESPONDENT(S)/DEFENDANTS.:

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1. SUNNYKUTTY, S/O GEORGE, OTTATHENGIL HOSUE, ANAPRAMBAL VADAKKU MURI,THALAVADY VILLAGE, KUTTANADU TALUK.689572.

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2. UCO BANK, REPRESENTED BY ITS BRANCH MANAGER, THIRUVALLA BRANCH, CROSS JUNCTION, M.C.ROAD, THIRUVALLA.689101.

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3. KUNJAMMA, D/O KURUVILA, KURUVELIL HOUSE, THALAVADY VILLAGE, ANAPRAMBAL NORTH MURI, KUTTANAD TALUK.689572.

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4. GRACY, D/O KURUVILA, KURUVELIL HOUSE, THALAVADY VILLAGE, ANAPRAMBAL NORTH MURI, KUTTANAD TALUK.689572.

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5. KUNJAAMMA, D/O KURUVILA, KURUVELIL HOUSE, THALAVADY VILLAGE,ANAPRAMBAL NORTH MURI, KUTTANAD TALUK, 689572.

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6. KOCHAMMA, D/O KURUVILA, KURUVELIL HOUE, THALAVADY VILLAGE, ANAPRAMBAL NORTH MURI, KUTTANAD TALUK, 689572.

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-2-

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OPC NO 2577 OF 2016:

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-2-

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7. K.K. MAMAN, S/O KURUVILA, KURUVELIL HOUSE, THALAVADY VILLAGE, ANAPRAMBAL NORTH MURI, KUTTANAD TALUK,689572.

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R2 BY SRI.DEEPAK JOY K., SC, UCO BANK

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THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 21-10-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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K.V.

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OP(C).No. 2577 of 2016 (O) ---------------------------

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APPENDIX PETITIONER(S)' EXHIBITS ----------------------EXHIBIT P1 TRUE COPY OF OS NO.789/2016 OF MUNSIFF COURT, ALAPPUZHA. EXHIBIT P2 TRUE COPY OF THE SALE DEED NO.2542 OF AMBALAPPUZHA SRO. EXHIBIT P3 TRUE COPY OF THE IA NO.3205/16 DATED 3.9.2016. RESPONDENT(S)' EXHIBITS NIL -----------------------

/TRUE COPY/

P.A.TO JUDGE

K.V.

K. RAMAKRISHNAN, J.

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O.P.(C).No.2577 of 2016

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....................................................... Dated this the 21^st day of October, 2016.

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JUDGMENT

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This petition is filed by the petitioner seeking intervention of this court to dispose of Ext.P3 petition pending before the Munsiff Court, Alappuzha under Article 227 of the Constitution of India.

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It is alleged in the petition that the petitioner is the first plaintiff in Ext.P1 suit OS.No.789/2016 on the file of the Munsiff Court, Alappuzha for declaring sale deed No.2542 dated 10.11.1992 executed by the 7^th defendant in favour of the first defendant is null and void and also for partition of the plaint schedule property. The first respondent availed a loan of Rs.25 lakhs from the second respondent during 2007 mortgaging the plaint schedule property. Since he had failed to pay the amount, they have initiated legal proceedings under Securitization and Reconstruction of Financial Assets and Enforement of Security Interest Act, 2002 (hereinafter referred to as 'the SARFAESI Act), against the first respondent and the plaint schedule property is now posted for sale. According to the petitioner and others, the 7^th respondent has no right. So they field the suit for partition and also setting aside the document. They also filed Ext.P3 application as I.A.No.3205/2016 for injunction restraining defendants 1 and 2 from creating document of transfer in respect of the plaint schedule property or inducting strangers in the property or

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O.P.(C).No.2577 of 2016 2

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committing act of waste in the property. The suit as well as the injunction application were filed on 3.9.2016 but the court below ordered notice in the injunction application and posted the case along with the suit to 23.11.2016 for return of notice. So the petitioner has no other remedy except to approach this court seeking the following reliefs:

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i. Issue an appropriate order or direction directing the learned Munsiff, Alappuzha to consider and dispose of Ext.P3 petition preferred by the petitioner and other plaintiff within a time frame.

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ii. Issue an appropriate order or direction directing the learned Munsiff Court, Alappuzha to pass an order of prohibitory injunction restraining 1^st and 2^nd respondents from creating documents of transfer in respect of the plaint schedule property or make any act of waste of mischief therein till the disposal of the suit.

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iii. Issue an appropriate order or direction to order status quo with respect to the sale of the plaint schedule property in Ext.P1 suit till the disposal of Ext.P3 petition.

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The second respondent entered appearance through standing counsel Sri. Deepak Joy K. notice to others have been dispensed with considering the nature of reliefs claimed.

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Heard Sri.T.P. Pradeep, learned counsel appearing for the petitioner and Sri. Deepak Joy K, learned counsel appearing for

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O.P.(C).No.2577 of 2016

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the second respondent.

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Learned counsel appearing for the petitioner submitted that unless a direction is given to the court below to dispose of the injunction application, the purpose of the suit will be defeated.

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On the other hand, learned counsel appearing for the second respondent submitted that the suit is barred under section 34 of the SARFAESI Act and he wants only a direction to consider that aspect also by the court below and counsel also submitted that it is not posted for sale but for taking possession.

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This court is not expressing any opinion regarding the right of the parties to file suit or right to get injunction in the application. But considering the circumstances mentioned in the petition, this court feels that the petition can be disposed of by directing the Munsiff, Alappuzha to advance the hearing of injunction application and directing the second respondent bank to appear on a date fixed by this court and consider the application for injunction and pass appropriate orders within a time limit. So the petition is disposed of as follows:

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The second respondent, who is represented by the standing

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counsel is directed to appear in the injunction application IA.No.3205/2016 in OS.No.789/2016 on 28.10.2016 before the Munsiff Court, Alappuzha and on such appearance, the court below is directed to advance the hearing and pass appropriate orders in

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O.P.(C).No.2577 of 2016 4

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that application within ten days from 28.10.16. The petitioner is also directed to serve a copy of the plaint and injunction application filed to the standing counsel appearing before this court so that the standing counsel can transmit the same to the concerned bank for taking appropriate steps to enter appearance on the date fixed by this court and proceed with the hearing of the application itself on that day. The question of maintainability of the suit and injunction application also left open to be decided by that court as this court has not expressed any opinion about right of the parties in this petition.

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With the above directions and observations this petition is disposed of. Registry is directed to communicate a copy of this order to the court below by phone and thereafter by Fax immediately.

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Sd/-

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K. RAMAKRISHNAN, JUDGE.

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O.P.(C).No.2577 of 2016 5

Gheevarghese Kuruvila v. Sunnykutty

Case brief

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Gheevarghese Kuruvila v. Sunnykutty

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