Dismissed

Hamsa v. the Trichur Urban Co-Op. Bank Ltd.

Kerala HC14 Oct 2016WP(C)/10423/2016

Case brief

AI extract

What is this about?

Petitioner challenged bank sale proceedings under SARFAESI Act alleging prior agreement for sale with borrowers. Court held petitioner had no interest in asset as mortgage preceded sale notice and decree. Writ petition dismissed with direction to return deposited money.

What did the court decide?

First respondent bank directed to return Rs.2,50,000/- to petitioner within two weeks.

Hamsa Vs the Trichur Urban Co-Op. Bank Ltd. — Cheque Dishonour | 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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FRIDAY, THE 14TH DAY OF OCTOBER 2016/22ND ASWINA, 1938

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WP(C).No. 10423 of 2016 (C)

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PETITIONER:

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HAMSA, S/O.KOMALATH ABOOBACKER, AGED 48 YEARS, RESIDING AT TC 1/781, KANIMANGALAM P O, KANIMANGALAM VILLAGE, KANIMANGALAM DESOM, THRISSUR.

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BY ADVS.SRI.BALAKRISHNAN GOPINATH

SMT.S.G.SAGEE

SRI.A.K.ANOOP

RESPONDENTS:

1. THE TRICHUR URBAN CO-OPERATIVE BANK LIMITED, HEAD OFFICE MISSION QUARTERS, POST BOX NO 86, THRISSUR - 680001, REPRESENTED BY ITS CHAIRMAN.

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2. MUHAMMED P S, S/O.PUTHIYAVEETTIL SAIDU MUHAMMED, KOORKKANCHERY VILLAGE, VADUKKARA DESOM, THRISSUR TALUK, THRISSUR DISTRICT- 680007.

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3. NABEEZA K V, W/O.PUTHIYAVEETIL MUHAMMED, KOORKKANCHERY VILLAGE, VADUKKARA DESOM, THRISSUR TALUK, PIN - 680007.

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4. STATE OF KERALA, REPRESENTED BY CHIEF SECRETARY TO GOVERNMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695001.

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R1 BY SRI.C.D.DILEEP, SC R2 & R3 BY ADVS.SRI.P.B.SAHASRANAMAN

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SRI.K.JAGADEESH

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R4 BY SENIOR GOVERNMENT PLEADER SRI.C.P.PRADEEP

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 14-10-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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mbr/

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WP(C).No. 10423 of 2016 (C)

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APPENDIX

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PETITIONE ---------	R(S ---	)' --	EXHIBITS: ---------
EXHIBITS	P1	:	TRUE COPY OF THE	REGISTERED AGREEMENT FOR SALE.
EXHIBITS	P2	:	TRUE COPY OF THE THE SUB COURT, TH	PLAINT IN OS 286 OF 2014 BEFORE RISSUR.
EXHIBITS	P3	:	TRUE COPY OF THE OS NO 286/2014.	JUDGMENT DTD 11/12/2014 IN
EXHIBITS	P4	:	TRUE COPY OF THE OS 286/2014.	DECREE DTD 11/12/2014 IN
EXHIBITS	P5	:	TRUE COPY OF THE RESPONDENTS 2 AND	NOTICE ISSUED TO THE 3 DTD 3/11/2015.
EXHIBITS	P6	:	TRUE COPY OF THE VERNACULAR DAILY	RELEVANT PORTION OF THE MATHRUBHUMI DTD 17/2/2016.
RESPONDEN ---------	T(S ---	)' --	EXHIBITS: ---------	NIL
				//TRUE COPY//
				P.S. TO JUDGE

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mbr/

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A.M. SHAFFIQUE, J.

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W.P.(C) No.10423 of 2016

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Dated this the 14^th day of October, 2016

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JUDGMENT

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Petitioner has approached this Court challenging proceedings initiated by the respondent Bank under the SARFAESI Act. According to the petitioner, he had entered into an agreement with the borrowers of the first respondent for purchasing the secured asset. The petitioner submits that he was not aware of any such arrangement. Since no action was taken by respondents 2 and 3 to assign the property as per the agreed terms, petitioner filed a suit before the Sub Court, Thrissur as O.S.No.286 of 2014 and an ex-parte decree had been passed directing the defendants therein, viz; respondents 2 and 3 herein to assign the plaint schedule property in favour of the plaintiff and execute the sale deed.

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It is at that stage that the petitioner had come to know about the proceedings initiated by the Bank for recovering the amount by sale of very same property.

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W.P.(C) No.10423 of 2016

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-2-

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Further proceedings pursuant to Ext.P6 was stayed

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by this Court on condition of the petitioner remitting Rs.2.5 lakhs. According to the petitioner, the said amount had been deposited.

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Respondents 2 and 3 has filed a counter affidavit stating that an agreement for sale was entered into as a security for repayment of the loan amount and no sale deed was executed. As far as the suit is concerned, it is stated that respondents 2 and 3 has filed an application to set aside exparte order, which is pending consideration. Respondents 2 and 3 also challenge the locus standi of the petitioner to file

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the writ petition. It is stated that respondents 2 and 3 are taking earnest efforts to arrange private sale of the property and settle the liability of the respondent Bank.

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As far as the petitioner is concerned, he is not a person who is entitled to challenge the proceedings taken under the SARFAESI Act. Petitioner has no contract with the respondent Bank. Petitioner appears to have entered into an agreement for sale with respondents 2 and 3. I do not intend

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W.P.(C) No.10423 of 2016

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-3-

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to go into the merits of the contentions urged as far as the said agreement is concerned, since the matter is pending before the Civil Court, which requires to be considered in accordance with law. As already indicated an application to set aside the ex-parte decree is pending consideration which has to be considered in accordance with law.

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The first question that requires to be considered is whether there is any locus standi for the petitioner to challenge Ext.P6 and whether he is entitled for any direction as sought for. Ext.P6 is a notice for sale of the secured asset. Under the SARFAESI Act, the Bank is entitled to proceed to sell the secured asset after taking all such steps in accordance with law. Petitioner claims that he has entered into an agreement with the borrower to assign the property. The agreement is dated 20.3.2014. Though there is nothing wrong on the part of the petitioner for filing a suit for seeking specific performance and obtaining a decree, insofar as the mortgage has been created prior to the decree being passed, the petitioner cannot claim any interest in the secured asset. If he cannot claim any

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W.P.(C) No.10423 of 2016

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-4-

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interest in the secured asset, he cannot challenge proceedings initiated by the Bank as well. Apparently, the ex-parte decree had been passed only on 11.12.2014. The notice under Section 13 (2) had been issued on 17.4.2013 and possession of the property was taken on 15.2.2014. Under such circumstances, when it is found that the petitioner has no interest in the secured asset under, I do not think that on any of the grounds, the petitioner is entitled to challenge Ext.P6.

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Of course, the petitioner had remitted an amount of

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Rs.2,50,000/- to the Bank as per interim order dated 18.3.2016. Since I have already held that the writ petition is not maintainable, the first respondent Bank shall return to the petitioner the aforesaid amount of Rs.2,50,000/- within a period of two weeks from today by way of demand draft.

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With the above observations, this writ petition is dismissed.

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Sd/-

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A.M. SHAFFIQUE JUDGE

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Scl/14.10.2016

Hamsa v. the Trichur Urban Co-Op. Bank Ltd.

Case brief

What is this about?

What did the court decide?

Hamsa v. the Trichur Urban Co-Op. Bank Ltd.

Case brief

What is this about?

What did the court decide?

What the court decided

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