Allowed

Indira Basheer v. Recovery Officer

Kerala HC7 Sept 2016WP(C)/13585/2016

Case brief

AI extract

What is this about?

The Kerala High Court disposed of a writ petition seeking to lift an attachment order on the petitioner's personal property. The court vacated the attachment order, directed the petitioner to pay the outstanding balance of ₹1.25 Crores with 9% interest within one month, and ordered the bank to return title deeds upon receipt.

What did the court decide?

Attachment vacated; Payment of ₹1.25 Cr plus 9% interest directed within one month; Release of title deeds ordered.

Indira Basheer Vs Recovery Officer — 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 A.M.SHAFFIQUE

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WEDNESDAY, THE 7TH DAY OF SEPTEMBER 2016/16TH BHADRA, 1938

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WP(C).No. 13585 of 2016 (W)

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PETITIONER(S) :

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INDIRA BASHEER,

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WIFE OF BASHEER M.PICHA, BAINDS, LATEX ROAD, ULAMPARA, PEROORKADA, THIRUVANANTHAPURAM.

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BY SRI.A.V.THOMAS (SENIOR ADVOCATE) ADVS.SRI. LIJO JOSEPH SRI. NIDHI SAM JOHNS

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RESPONDENT(S) :

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1. RECOVERY OFFICER, DEBTS RECOVERY TRIBUNAL, KSHB BUILDING, ERNAKULAM, KOCHI-682 036.

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2. INDIAN BANK, SHANMUGHAM ROAD BRANCH, ERNAKULAM-682 031, REPRESENTED BY ITS BRANCH MANAGER.

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R1 BY ADV. SRI.N.NAGARESH, ASSISTANT SOLICITOR GENERAL ADV. SMT.MINI R.MENON, ADDL.CGSC R2 BY ADV. SRI.S.EASWARAN

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 07-09-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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Msd.

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WP(C).No. 13585 of 2016 (W)

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APPENDIX

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PETITIONER(S)' EXHIBITS :

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P1 TRUE COPY OF THE ORDER DATED 28.05.2007 IN I.A NO. 840/2007 PASSED BY THE FIRST RESPONDENT.

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P2 TRUE COPY OF THE RECEIPT DATED 03.04.2008 FOR PAYMENT OF RS.1.50 CRORES ISSUED BY THE COUNSEL FOR THE BANK.

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P3 TRUE COPY OF THE ORDER DATED 30.09.2011 PASSED BY THE DEBTS RECOVERY TRIBUNAL IN APPEAL NO. 6/2011.

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P4 TRUE COPY OF THE JUDGMENT DATED 10.04.2013 PASSED BY HIGH COURT OF KERALA IN OP(DRT)NO. 3160/2011.

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P5 TRUE COPY OF I.A NO. 3695/2013 FILED BEFORE THE FIRST RESPONDENT.

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P6 TRUE COPY OF THE COUNTER AFFIDAVIT DATED 11.03.2014 FILED BY THE BANK IN I.A NO.3695/2013 BEFORE THE FIRST RESPONDENT.

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P7 TRUE COPY OF THE JUDGMENT DATED 18.09.2015 PASSED BY SUPREME COURT IN CIVIL APPEAL NO. 8223/2015.

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P8 TRUE COPY OF THE ACKNOWLEDGMENT DATED 18.03.2016 ISSUED BY THE SECOND RESPONDENT BANK FOR PAYMENT OF RS.1.25 CRORES.

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P9 TRUE COPY OF I.A NO.878/2016 IN I.A NO.3695/2013 FILED BY PETITIONER BEFORE THE RECOVERY OFFICER.

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P10 TRUE COPY OF THE STATEMENT DATED 03.04.2016 ALONG WITH VALUATION STATEMENT DATED 19.12.2012 FILED BY THE 2ND RESPONDENT.

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RESPONDENT(S)' EXHIBITS :

NIL

//TRUE COPY//

P.A.TO JUDGE.

Msd.

A.M.SHAFFIQUE, J.

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------------------------------------ W.P.(C).No.13585 of 2016

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

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Dated this the 7^th day of September, 2016

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J U D G M E N T

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This writ petition has been filed seeking for a direction to the

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1^st respondent to pass orders on Ext.P5 application i.e. I.A.No.3695/2013 by lifting Ext.P1 status quo order passed in I.A.No.840/2007 and inter alia seeking for a direction to the 2^nd respondent to release its claim over the personal properties belonging to the petitioner and her husband over which Ext.P1 status quo order was passed for raising funds for payment of the balance amount of 1.25 Crores as directed by the Apex Court. ₹

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The facts as disclosed in the writ petition would show that the petitioner was a partner of M/s.Bainds Associates and Director of a company M/s.Bainds Towers Private Ltd. The petitioner and her husband had availed of certain financial facilities from the 2^nd respondent Bank creating mortgage by deposit of title deeds in respect of the property having an extent of 40.08 cents. The liability has almost been wiped off except for payment of 1.25₹ Crores. According to the petitioner, the valuation of the mortgaged property will come to more than 5 lakhs as evident from Ext.P10₹ valuation statement taken by the Bank. In the meantime, when substantial amounts were due, recovery officer had also attached the personal property of the petitioner and the parties were directed

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W.P.(C).No.13585 of 2016

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to maintain status quo as evident from Ext.P1. At the relevant time, the amount due was 5,69,69,176.45/-. Since substantial portion of₹ the liability had been settled and what remains was only 1.25₹ Crores, petitioner filed an application to vacate the prohibitory order Ext.P1 and since no orders were passed in the matter, this writ petition is filed.

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When the writ petition came up for hearing, the petitioner suggested that if temporarily the attachment/status quo is lifted, the petitioner could make arrangements to take a loan of 1.25 Crores₹ from another financial institution by mortgaging the title deeds of the property which is under attachment and settle the liability of the 2^nd respondent Bank. By an interim order dated 06.04.2016 this Court granted time to the petitioner to remit 1.25 Crores on or₹ before 25.04.2016 and vacated the order of status quo until the said period. Further directions were issued on 08.04.2016 to the SubRegistrar, Sasthamangalam as well. The petitioner again approached this Court by filing I.A.No.12849 of 2016 which was disposed of by this Court on 17.08.2016 further extending the time by 45 days from the date of order and the interim order dated 08.04.2016 was to continue for the said period.

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I.A.No.14149/2016 has been filed by the petitioner seeking for a direction to lift the attachment/prohibitory order recorded on 11.06.2007 in the Sub Registry Office and for a direction to the Sub-

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W.P.(C).No.13585 of 2016

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Registrar to efface all entries relating to the same inter alia contending that encumbrance certificate obtained by the petitioner shows that the lifting of attachment is conditional and therefore, the financial institution, the State Bank of Travancore, has expressed their inability to accept the said document as sufficient security for releasing 1.25 Crores. ₹

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Learned Senior Counsel appearing for the petitioner submits that as matter stands now the liability is only to an extent of 1.25₹ Crores and when the mortgaged property itself values more than 5₹ Crores, there is no necessity to retain the attachment. It is only on account of the entry in the encumbrance certificate which shows that the attachment is lifted conditionally that the financial institution is not in a position to disburse the amount. Learned counsel submits that if the order of attachment is lifted, the payment could be made within a period of one month from today.

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On the other hand the learned counsel appearing for the 2^nd respondent Bank while opposing the above application submits that though sufficient time had been granted to the petitioner to pay ₹1.25 Crores, no action had been taken in the matter. If the petitioner goes on delaying the liability to pay, it will create substantial loss to the respondent Bank especially when the Apex Court had directed payment of the amount by 31.03.2016. However, as directed by the Apex Court, the petitioner paid only

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W.P.(C).No.13585 of 2016

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₹1.25 Crores and the Bank had in fact agreed, despite the expiry of the time, to receive the balance amount.

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Heard the learned counsel appearing for the 1^st respondent

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also.

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Having regard to the aforesaid factual situation, I am of the view that when sufficient security is available with the 2^nd respondent Bank there is no necessity for continuing the attachment ordered by the recovery officer as evident from Ext.P1. However, substantial time had been given to the petitioner to remit the balance amount of 1.25 Crores. The Apex Court directed that the₹ payment to be made by 31.03.2016. But despite the fact that by interim orders, time had been extended by this Court, the petitioner could not pay the said amount. Under such circumstances, I am of the view that the petitioner also should be made liable to pay interest, if the amount is not paid within a specified time. Accordingly, this writ petition is disposed of as under :

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That the attachment order in terms of Ext.P1 shall stand vacated.

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That the petitioner shall pay the balance amount of ₹1.25 Crores with interest @ 9% per annum from 01.04.2016 till the date of payment, within a period of one month from today.

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On receipt of the amount, respondent Bank shall return

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W.P.(C).No.13585 of 2016

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the title deeds to the petitioner.

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The Registry of this Court shall communicate this order to the Sub-Registrar Office, Sasthamangalam and Village Officer, Peroorkada, Thiruvananthapuram

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District.

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Sd/-

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A.M.SHAFFIQUE, JUDGE.

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Indira Basheer v. Recovery Officer

Case brief

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Indira Basheer v. Recovery Officer

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