Petitioners challenging a bank's notice to vacate secured assets and seeking exclusion of residential property from enforcement. Court dismissed writ petition, finding no ground for interference under Article 226.
The writ petition fails and is dismissed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE SMT. JUSTICE P.V.ASHA
TUESDAY, THE 28TH DAY OF JUNE 2016/7TH ASHADHA, 1938
WP(C).No. 1539 of 2014 (N)
PETITIONERS:-
BY ADVS.SRI.K.C.ELDHO
SRI.JIJO THOMAS SRI.SURAJ.S SRI.ANESH JAMES
RESPONDENTS:-
WP(C).No. 1539 of 2014 (N)
R1,R2 BY ADV. SRI.SATHISH NINAN R1, R2 BY ADV. SRI.SANTHOSH MATHEW R3 BY ADV. SRI.R.HARIKRISHNAN R3 BY ADV. SRI.E.RAMACHANDRAN R3 BY ADV. SRI.R.UMASANKAR R3 BY ADV. SRI.P.ARUN KUMAR (MONCOMPU) R3 BY ADV. SMT. SINDHU LEKSHMI R3 BY ADV. SMT.SINDHU SARAH THOMAS
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 28-06-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C).No. 1539 of 2014 (N)
APPENDIX
PETITIONERS' EXHIBITS : -
WP(C).No. 1539 of 2014 (N)
RESPONDENTS' ANNEXURES : -
ANNEXURE I : TRUE COPY OF THE JUDGMENT DATED 29.3.2010 IN W.P. (C) No. 13592/2008 OF THIS HONOURABLE COURT. ANNEXURE II : TRUE COPY OF THE JUDGMENT DATED 19.1.2010 IN W.P. (C) No. 10791/2009 OF THIS HONOURABLE COURT. ANNEXURE III : TRUE COPY OF THE JUDGMENT DATED 22.1.2010 IN .W.A No. 111/2010 OF THIS HONOURABLE COURT. ANNEXURE IV : TRUE COPY OF THE ORDER DATED 28.4.2010 OF THE DRT ERNAKULAM IN I.A. No. 862/2010 IN SA No. 137/2010. ANNEXURE V : TRUE COPY OF THE COMMON ORDER DATED 29.9.2011 IN W.P. (C) Nos. 13702/2010 AND 36711/2010 OF THIS HONOURABLE COURT. ANNEXURE VI : TRUE COPY OF I.A. IN W.P. (C) No. 36711/2010 FILED BY THE 3rd PETITIONER.
// TRUE COPY //
P.A. TO JUDGE
DMR/-
P.V. ASHA, J.
W.P.(c) No. 1539 of 2014
Dated this the 28th day of June, 2016
JUDGMENT
The petitioners have filed this writ petition challenging Exhibit P14 notice dated 13.01.2014 by which, an Advocate Commissioner appointed by the Chief Judicial Magistrate Court, Alappuzha in M.C. No. 9/2014, demanded vacant possession of the secured assets mentioned therein within two days, failing which it was informed that vacant possession would be taken and the assets would be handed over to the secured creditors, as directed by the Court. The petitioners have further prayed for a direction to respondents 1 and 2 not to proceed against the residential property having an extent of
1.18 acres referred to as Item No.4 in Exhibit P14 before exhausting the remedies against other items of properties. There is another prayer also for a direction to respondents to proceed against the mortgaged properties having an extent of 38 acres lying outside the factory premises before proceeding against the properties mentioned in Exhibit P14, apart from seeking a direction to pass orders in Exhibit P6 representation.
W.P.(c) No. 1539 of 2014
2
Court passed an interim order on 16.01.2014 directing as follows:
“Respondents 1 and 2 are free to take physical possession of all the secured assets. But the petitioners shall be permitted to occupy the residential house alone as licensees. This arrangement shall continue till the date of sale only. The petitioners shall unconditionally vacate the premises for being handed over to the auction purchaser.”
3. The learned counsel for the petitioners submits that
Exhibit P14 seems to be set aside by the Debt Recovery Tribunal. At any rate, it is the common case that so far dispossession is not effected and the petitioners and others have not handed over vacant possession of the properties to the Bank. The case of the petitioners is that the first petitioner has been residing in the property in the Tharavad house for the past more than 60 years and her husband late Suseelan was a renowned person. According to the petitioners, it is only because of the influence exerted by the third respondent that the bank has been proceeding against the Tharavad properties
W.P.(c) No. 1539 of 2014
3
and the properties covered by Exhibit P14. According to them, they had placed certain proposals before the Bank to settle the matter or else to proceed against other properties without disturbing the Tharavad properties, which would be more than sufficient to meet the demand of the Bank.
W.P.(c) No. 1539 of 2014
4
that so far the Bank could not realize the debt due to it. It is also stated that the actual physical possession of the property was taken on 23.01.2010. The S.A. filed by the petitioners were allowed, seeing that there was delay in furnishing reply to the objections of the debtors pursuant to notice issued under Section 13(2). Therefore the proceedings were taken afresh and Exhibit P14 notice was issued by the Advocate Commissioner thereafter for taking possession of the secured assets of the debtors.
W.P.(c) No. 1539 of 2014
5
those aspects stated that it is not practicable to exclude those items of the properties. It is not disputed that huge amount is due from the petitioners to the Bank. The Bank has initiated proceedings for recovering the debt due to them under the special enactment for recovery of debt, which even now continue to be in arrears because of the disputes amongst the petitioners and their relatives and litigations. There is no circumstance warranting interference by this Court under Article 226 of the Constitution. Therefore, no relief can be granted to the petitioners.
In the above circumstances, the writ petition fails and is dismissed.
P.V. ASHA, JUDGE
DMR/-
2 issues framed by the court
Whether the High Court should interfere under Article 226 of the Constitution to quash a notice for possession of secured assets.
Whether the petitioner is entitled to a direction excluding the residential property from the enforcement proceedings.
3 provisions across 2 enactments
M.SAVITHRI
K.S.SHIBU
DR.K.S.SUBHASH
STATE BANK OF TRAVANCORE
K.S.SANJEEV
P.V. ASHA
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
