Dismissed

T.M.Sulekha Eassa v. P.K.Nazar

Kerala HC5 Sept 2016OP (DRT)/76/2016

Case brief

AI extract

What is this about?

Petitioners, legal heirs of the deceased, filed an original petition seeking a declaration that a settlement between the bank and other borrowers did not bind them, despite a money decree in their favor. The Debt Recovery Tribunal held that their remedy lay in executing the existing decree. No declaration was granted.

What did the court decide?

The petitioner's appeal seeking a declaration challenging the settlement and preventing the sale certificate was dismissed.

T.M.Sulekha Eassa Vs P.K.Nazar — Execution and Attachment | 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 A.M.SHAFFIQUE

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MONDAY, THE 5TH DAY OF SEPTEMBER 2016/14TH BHADRA, 1938

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OP (DRT).No. 76 of 2016 (O)

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OA.NO. 274/2009 OF DEBT RECOVERY TRIBUNAL, ERNAKULAM O.S.NO.55/2014 OF SUB COURT, KOCHI

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PETITIONER(S):

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1. T.M.SULEKHA EASSA, W/O.LATE K.B.EASSA, H.NO.11/479 (16/2109A), C.B.LANE, KADAVALAPPIL, CHULLICKAL, THOPPUMPADY, KOCHI-682 005.

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2. K.E.SAJEENA, D/O.LATE K.B.EASSA, H.NO.11/479 (16/2109A), C.B.LANE, KADAVALAPPIL, CHULLICKAL, THOPPUMPADY, KOCHI-682 005.

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3. K.E.SAJEER,

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S/O.LATE K.B.EASSA, H.NO.11/479 (16/2109A), C.B.LANE, KADAVALAPPIL, CHULLICKAL THOPPUMPADY, KOCHI-682 005.

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4. K.E.SANIL,

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S/O.LATE K.B.EASSA, H.NO.11/479 (16/2109A), C.B.LANE, KADAVALAPPIL, CHULLICKAL, THOPPUMPADY, KOCHI-682 005.

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BY ADVS.SRI.V.B.NARAYANAN SRI.M.P.HARIKUMARAN PILLAI

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SRI.H.ABDUL SUDHEER

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RESPONDENT(S):

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1. P.K.NAZAR, S/O.KOYA, AGED 50 YEARS, HOUSE NO.12/401, RAMESWARAM EAST MURI, THOPPUMPADY VILLAGE, KOCHI TALUK-682 005.

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2. JASMINE NAZAR,

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W/O.P.K.NAZAR AGED 44 YEARS, HOUSE NO.12/401, RAMESWARAM EAST MURI, THOPPUMPADY VILLAGE, KOCHI TALUK-682 005.

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2/-

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-2-

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OP(DRT). NO.76/2016

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3. MRS.JASSIYA, AGED 43 YEARS, W/O.AHAMMEDU, CHANIYIL MATTATHIL BHAGAM, AROOKUTTY P.O., CHERTHALA, ALAPUZHA-688 534.

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4. C.A.SALIM, AGED 42 YEARS, S/O.AHAMMEDUKUTTY, VADISALEM, AROOKUTTY P.O., CHERTHALA.

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5. CATHOLIC SYRIAN BANK LTD., MARKET ROAD BRANCH, ERNAKULAM-682 031.

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6. DEBT RECOVERY OFFICER, DEBT RECOVERY TRIBUNAL, ERNAKULAM.

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R5 BY ADV.SRI.C.A.JOY R6 BY SRI.N.NAGARESH, ASSISTANT SOLICITOR GENERAL

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THIS OP (DEBT RECOVERY TRIBUNAL) HAVING COME UP FOR ADMISSION ON 05-09-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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sts

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OP (DRT).No. 76 of 2016 (O)

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APPENDIX

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PETITIONER(S)' EXHIBITS

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P1 TRUE COPY OF THE DECREE DT. 28-1-2016 IN OS 55/14. P2 TRUE COPY OF THE COMMON ORDER DT. 25-2-2014 IN WPC.NO. 931/2014 AND OP(DRT)6/14.

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P3 TRUE COPY OF THE AFFIDAVIT DT. 10-6-16 FILED BY THE RESPONDENT NO.1.

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P4 TRUE COPY OF THE IA 325/16. P5 TRUE COPY OF THE OBJECTION IN IA 325/16. P6 TRUE COPY OF THE TELEPHONE BILL DT. 22-4-16 IN THE NAME OF LATE K.B.EASSA.

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RESPONDENT(S)' EXHIBITS:

NIL

/TRUE COPY/

P.S.TO JUDGE

sts

A.M. SHAFFIQUE, J.

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

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OP(DRT) No. 76 of 2016

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

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Dated this, the 5^th day of September, 2016

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J U D G M E N T

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Petitioners have approached this Court seeking for a declaration that since the petitioners are not parties to the settlement between respondent Nos.1 to 5, the conditions of the settlement incorporated in Ext.P2 common order is not binding on the petitioners and the 6^th respondent has no authority to issue sale certificate in respect of 4 cents of property and building in favour of the 3^rd respondent. According to the petitioners, they are the legal heirs of late K.B.Eassa. They claimed specific performance of an agreement with reference to an extent of 4 cents of property and filed OS No.55/2014. The suit was partly decreed permitting the petitioners to recover `10 lakhs from the second defendant Smt.Jasmine Nazar with interest @9% per annum.

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The contention of the petitioners is that by virtue of the compromise as reflected in Ext.P2 order, Recovery Officer had been permitted to issue a sale certificate in respect of aforesaid 4 cents in favour of one Jassiya and Smt.Jasmine Nazar had relinquished her

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OP(DRT) No.76/2016

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-:2:-

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rights. It is stated that the said process is being continued. The main contention urged by the petitioners is that in so far as the petitioners are concerned, they are not bound by the terms of settlement arrived at between the Bank and the borrowers and other persons had approached the Court in OP(DRT) No. 6/2016 and therefore any settlement arrived at by the parties is not binding on them. No doubt, the terms of the settlement will only be binding upon the persons who are party to the settlement. The question is whether the petitioners have any legal right in respect of the aforesaid 4 cents of the property in order to get a declaration as sought for.

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Learned counsel for the 5^th respondent Bank submits that as far as the petitioners claim is concerned, the defendants in OS No.55/2014 had deposited the decree amount before the Court. However, the petitioners had raised a contention that the amount deposited was not enough to settle the decree debt as per Ext.P5 counter affidavit filed by them before the Court. It is stated that the compromise settlement had been arrived at after discharging the liability of the Bank and as matters stand now, no amount is due to the Bank.

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OP(DRT) No.76/2016

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-:3:-

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Having regard to the aforesaid factual situation, it is rather clear that the petitioners' right having been crystallized into a decree, the remedy of the petitioners is to execute the decree in accordance with law. Petitioners had only filed a suit for specific performance of an agreement to sell and the specific performance had been denied by the Civil Court whereas only a money decree had been granted in favour of the petitioners. Petitioners submit that they have already filed an appeal against the said judgment and decree which is pending before this Court.

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Having regard to the present factual scenario involved in the matter, I do not think that the petitioner can challenge the compromise entered into between the parties by seeking a declaration as sought for. No legal right is sought to be enforced in the relief for declaration and therefore I do not think that this Court will be justified in granting any such relief.

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OP(DRT) is therefore dismissed.

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Sd/-

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A.M. SHAFFIQUE, JUDGE

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Rp5/09/2016

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//True Copy//

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P.S to Judge

T.M.Sulekha Eassa v. P.K.Nazar

Case brief

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T.M.Sulekha Eassa v. P.K.Nazar

Case brief

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