Allowed

Shahitha T.K., v. Soudamini P.

Kerala HC2 Nov 2016OP(C)/2727/2016

Case brief

AI extract

What is this about?

This Court directed the Additional Munsiff, Kozhikode to expeditiously dispose of an interim injunction application filed in a suit arising from a property sale agreement within two weeks. Pending disposal, SARFAESI proceedings by the respondent bank were stayed under Article 227. Maintainability objections are left open for the lower court.

What did the court decide?

Direction to Munsiff Court to dispose of I.A. No.4430/2016 within two weeks; SARFAESI proceedings kept in abeyance.

Shahitha T.K., Vs Soudamini P. — Civil Procedure and Limitation | 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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WEDNESDAY, THE 2ND DAY OF NOVEMBER 2016/11TH KARTHIKA, 1938

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O.P.(C).No. 2727 of 2016 (O)

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PETITIONER(S)/PLAINTIFF:

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SHAHITHA T.K.,

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D/O.T.K.BEERAN KOYA, AGED 40, KIZHAKKECHALIL HOUSE, NELLIKODE AMSOM, KOVOOR DESOM, MEDICAL COLLEGE P.O., KOZHIKODE 673 008.

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BY ADV. SMT.M.SUSEELA

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RESPONDENT(S)/DEFENDANTS:

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1. SOUDAMINI P., W/O.CHERUNNIKUTTY, AGED 69 YEARS, PULLORAKUNNUMMAL HOUSE, MUTTANCHERY P.O., MADAVOOR AMSOM, MUTTANCHERY DESAM, VIA NARIKKUNI, KOZHIKODE 673 585.

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2. HDFC BANK LTD., SEEMAX TOWER, OPP. JEM TVS, KANNUR ROAD, NADAKKAVU BRANCH, KOZHIKODE 673 011 REPRESENTED BY ITS BRANCH MANAGER

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3. THE AUTHORISED OFFICER, HDFC BANK LTD,., SL PLAZA, PALARIVATTOM, KOCHI 682 025.

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R2 & R3 BY ADV. SRI.T.RAJESH, SC, HDFC BANK LTD.

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THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 02-11-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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OP(C).No. 2727 of 2016 (O)

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APPENDIX

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PETITIONER(S)' EXHIBITS

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P1 TRUE COPY OF THE PLAINT DATED 24.10.2016 IN O.S. NO.745/2016 PENDING BEFORE THE MUNSIFF'S COURT -IIA, KOZHIKODE.

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P2 TRUE COPY OF THE AGREEMENT DATED 8.3.2013 EXECUTED BETWEEN THE PETITIONER AND THE 1ST RESPONDENT

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P3 TRUE COPY OF THE PAYMENT RECEIPT DATED 7.5.2013

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P4 TRUE COPY OF THE PAYMENT RECEIPT DATED 15.3.2014

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P5 TRUE COPY OF THE INTERIM APPLICATION, I.A. NO.4430/2016, FILED IN EXT.P1 SUIT

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RESPONDENT(S)' EXHIBITS

NIL

//True Copy//

P.A. To Judge

K. Ramakrishnan, J.

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============================== O.P.(Civil)No.2727 of 2016

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============================== Dated this, the 02^nd day of November, 2016.

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J U D G M E N T

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This is an application filed by the petitioner seeking intervention of this Court to give direction to the MunsiffIIA , Kozhikode to expedite disposal of I.A.No.4430/2016 in O.S.No.745/2016 pending before that court within a time frame. Till then, the proceedings initiated by the respondents 2 and 3 is directed to be kept in abeyance, under Article 227 of the Constitution of India.

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It is alleged in the petition that the petitioner as plaintiff, filed Ext.P1 suit as O.S.No.745/2016 before II Additional Munsiff Court, Kozhikode, for injunction restraining defendants 2 and 3 from proceeding against the property for the loan taken by first respondent. According to the petitioner, first respondent is the owner of the plaint schedule property by virtue of sale deed No.3899/2005 of S.R.O., Koduvally and he agreed to sell the property to the petitioner for a total consideration of

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O.P.(Civil)No.2727 of 2016 : 2 :

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Rs.57,00,000/- as per agreement dated 08.03.2013 evidenced by Ext.P2 agreement. The first respondent received Rs.29,50,000/- from the petitioner at the time of execution of Ext.P2 agreement and had undertaken to discharge the liability due to Punjab National Bank, Kunnamangalam Branch in respect of the plaint schedule property and get the property released from the liability and hand over the title deeds of the property to her. The petitioner also paid Rs.18,00,000/- more on 07.05.2013 (wrongly shown as 07.05.2014 according to the counsel for the petitioner) evidenced by Ext.P3 and the balance consideration of Rs.9,50,000/- was paid on 15.03.2014 evidenced by Ext.P4. So, the entire amount due as per Ext.P2 has been paid to the first respondent, but due to some internal dispute between the owners of the property, the sale deed could not be executed. The respondents 2 and 3 initiated proceedings against the plaint schedule property under Securitization And Reconstruction of Financial Assets and Enforcement of Security Interest Act (SARFAESI Act) before Chief Judicial

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O.P.(Civil)No.2727 of 2016 : 3 :

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Magistrate Court, Kozhikode as C.M.P.No.1594/2015 and obtained an order to take over the possession of the property and also to break open the lock of the house situated therein with police assistance. Petitioner is not a party to the above proceedings. So, the petitioner filed Ext.P1 suit and also filed Ext.P5 application as I.A.No.4430/2016 for injunction restraining defendants 2 and 3 from proceeding against the property for the loan taken by the first respondent as they have got charge over the plaint schedule property. The court below is not taking the matter. The respondents entered appearance and the court below has not passed any interim order. But, the respondents 2 and 3 are trying to proceed with the SARFAESI proceedings. So, the petitioner has no other remedy except to approach this Court seeking the following reliefs:

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“(a) Direct the Munsiff's Court-IIA, Kozhikode to dispose of Ext.P-5 petition, I.A.No.4430/2016 at the earliest and within a definite time frame as set by this Honourable Court;

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(b) Pass an order of injunction as prayed for in Ext. P-5 till the Munsiff's Court-IIA, Kozhikode passes

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O.P.(Civil)No.2727 of 2016 : 4 :

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orders on Ext.P-5 as per the direction of this Honourable Court; and

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(c) Pass such other orders as this Honourable Court deems fit and proper in the facts and circumstances of the case.”

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Respondents 2 and 3 entered appearance

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through the learned Standing Counsel Shri.T.Rajesh. Considering the nature of relief claimed, notice to first respondent is dispensed with.

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Heard Smt.M.Suseela, counsel appearing for the petitioner and Shri.T.Rajesh, Standing Counsel appearing for respondents 2 and 3.

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The counsel for the petitioner submitted that as per Ext.P2 agreement, the entire amount has been paid and what is left is only the execution of the sale deed by first respondent, that is being protracted for one reason or other. In the meantime, the respondents 2 and 3 have taken steps to take possession of the property with police aid by filing an application before the Chief Judicial Magistrate Court, Kozhikode. If the proceedings under the SARFAESI Act is allowed to proceed with, the suit

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O.P.(Civil)No.2727 of 2016 : 5 :

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filed by the petitioner will become infructuous.

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On the other hand, the counsel for the

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respondents 2 and 3 submitted that even as per the allegations in the plaint, there was a mortgage in respect

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of the plaint schedule property with Punjab National Bank, Kunnamangalam Branch and that right was taken over by second respondent Bank and they are only proceeding against the property on the basis of that taking over. Further, the remedy of the petitioner is to challenge the same before the Debt Recovery Tribunal under the SARFAESI Act and not to file a suit. He also submitted that if for any reasons, this Court directs the SARFAESI proceedings to be kept in abeyance till the disposal on that injunction application, his right to challenge the maintainability of the application to be considered by the court below can be left open.

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It is an admitted fact that the property agreed to be sold as per Ext.P2 agreement said to have been entered into between the petitioner and the first respondent was subject matter of a mortgage with

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O.P.(Civil)No.2727 of 2016 : 6 :

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Punjab National Bank, Kunnamangalam branch.

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According to the petitioner, even at the time when the agreement was executed, they were aware of the liability and the understanding was that, out of the advance amount paid, the first respondent has to pay off the liability and get the property released from mortgage and hand over the title deeds. Since the execution of the document was delayed, when she came to know about the SARFAESI proceedings being initiated by the respondents 2 and 3 by filing a petition before Chief Judicial Magistrate, Kozhikode, she rushed to the court by filing Ext.P1 suit for injunction against the Bank from proceeding against the property for the liability of the first respondent. Further, it is also seen from the allegation of the petition itself that the petitioner filed Ext.P5 application as I.A.No.4430/2016 for injunction restraining the respondents from proceeding against the property. But, the court below only ordered notice and admittedly respondents entered appearance and posted to 25.11.2016 for their objection. It may be mentioned

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O.P.(Civil)No.2727 of 2016 : 7 :

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here when interim injunction application has been filed seeking certain reliefs, if it is not granted, it is likely to make the suit itself infructuous. Even if the court below did not grant any ex parte interim injunction earlier, the court below should have taken all earnest attempt to dispose of that application within a time frame, considering the nature of relief claimed. So, under such circumstances, this Court feels that the petition can be disposed of by directing the Munsiff, Kozhikode, to dispose of I.A.No.4430/2016 in O.S.No.745/2016, as expeditiously as possible at any rate, within two weeks from the date of receipt of this judgment after advancing the hearing to a nearer date after giving notice to both the counsels and hearing them. Till then, the proceedings under the SARFAESI Act can be directed to be kept in abeyance. So, the petition is disposed of as follows:

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i) The II Additional Munsiff, Kozhikode, is directed to expedite disposal of I.A.No.4430/2016 in O.S.No.745/2016 pending before that court, as

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O.P.(Civil)No.2727 of 2016 : 8 :

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expeditiously as possible, at any rate, within two weeks from the date of receipt of this judgment after advancing the hearing from 25.11.2016 to a nearer date by giving notice to both the counsels and pass appropriate orders in that application before the time fixed by this Court in accordance with law.

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ii) The right of respondents 2 and 3 to raise the question of maintainability is also left open to be decided by that court. Till the disposal of I.A.No.4430/2016 as directed by this Court, the proceedings initiated by the respondents 2 and 3 before the Chief Judicial Magistrate, Kozhikode as per C.M.P.No.1594/2015, is directed to be kept in abeyance.

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Registry is directed to communicate this judgment to the courts below over phone and then, by fax immediately.

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Sd/- K.Ramakrishnan, Judge.

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Bb/03/11/2016

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[True copy]

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P.A to Judge

Shahitha T.K., v. Soudamini P.

Case brief

What is this about?

What did the court decide?

Shahitha T.K., v. Soudamini P.

Case brief

What is this about?

What did the court decide?

What the court decided

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