Dismissed

Hussain v. Nilambur Co-Op. Urban Bank Ltd. and Ors.

Kerala HC5 Aug 2016WP(C)/4122/2010

Case brief

AI extract

What is this about?

Petitioner purchased mortgaged land believing it was clear of encumbrances and alleged fraud by respondents in the mortgage and subsequent sale. Filed writ petition challenging the 4th Respondent's disposal of a representation. Court held the matter is factual and not suitable for writ jurisdiction under Article 226.

What did the court decide?

Writ petition dismissed. Liberty left open to seek remedies under law if any available.

Hussain Vs Nilambur Co-Op. Urban Bank Ltd. and Ors. — Property and Title | 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 SHAJI P.CHALY

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FRIDAY, THE 5TH DAY OF AUGUST 2016/14TH SRAVANA, 1938

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WP(C).No. 4122 of 2010 (M)

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PETITIONER(S):

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HUSSAIN, S/O. KIZHAKKEPARAMBIL MAMMAD, POST WANDOOR, MALAPPURAM DISTRICT.

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BY ADVS.SRI.SAJU.S.A., SRI.K.C.KIRAN.

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RESPONDENT(S):

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1. NILAMBUR CO-OPERATIVE URBAN BANK LTD., REPRESENTED BY ITS GENERAL MANAGER, POST NILAMBUR, MALAPPURAM DISTRICT.

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2. ABDUL AZEEZ,

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S/O. MOYIKKAL AHAMMEDKUTTY HAJI, POST WANDOOR, MALAPPURAM DISTRICT.

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3. MYMOONA,

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W/O. MOYIKKAL AHAMMEDKUTTY HAJI, POST WANDOOR, MALAPPURAM DISTRICT.

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4. THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES, MALAPPURAM.

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R1 BY ADV. SRI.DEVAPRASANTH.P.J. R3 BY ADVS. SRI.SUNIL V.MOHAMMED,

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SMT.AJITHA APPU.

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R4 BY SR. GOVT. PLEADER SRI.PAUL VARGHESE.

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 05-08-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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rs.

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WP(C).No. 4122 of 2010 (M)

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APPENDIX

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PETITIONER'S EXHIBITS:-

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EXT.P1 COPY OF THE ENCUMBRANCE CERTIFICATE ISSUED TO THE PETITIONER DATED 05/04/2006.

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EXT.P2 COPY OF THE PLAINT IN O.S. NO.309/2007 MUNSIFF COURT, MANJERI DATED 13/12/2007.

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EXT.P3 COPY OF THE WRITTEN STATEMENT FILED BY THE 2ND RESPONDENT DATED 11/03/2008.

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EXT.P4 COPY OF THE REGISTERED ASSIGNMENT DEED BEARING NO.36/2008 OF SRO, WANDOOR DATED 31/12/2007.

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EXT.P5 COPY OF THE REPRESENTATION TO THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES DATED 24/05/2008.

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EXT.P6 COPY OF THE JUDGMENT DATED 28/05/2008 IN WP(C).NO.15975/2008. EXT.P7 COPY OF THE ORDER DATED 22/12/2009 IN A.E.L. 3054/2008/K.DIS. PASSED THE 4TH RESPONDENT.

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RESPONDENT'S EXHIBITS:- NIL.

//TRUE COPY//

P.S. TO JUDGE

rs.

SHAJI P. CHALY, J

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W.P.(C)NO.4122 OF 2010

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Dated this the 5^th day of August, 2016

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J U D G M E N T

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Petitioner has purchased 25 cents of land in R.S.No.66/3 of Wandoor Village from the 2^nd respondent without noticing that the said property was under mortgaged to the 1^st respondent bank. 1^st respondent bank brought the mortgage property for sale, since 2^nd respondent defaulted repayment of the loan. In the sale, third respondent purchased the property in the name of his wife. According to the petitioner, respondents 2 and 3 have committed fraud in the matter, and the entire proceedings culminated in the sale of the property, are vitiated by fraud. In that regard, petitioner has submitted Ext.P5 representation before the 4^th respondent and thereafter secured Ext.P6 judgment in W.P.(C) No.15295/2008, by which the fourth respondent was directed to dispose of Ext.P5 as per law. According to the petitioner, fourth respondent without considering

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W.P.(C)NO.4122 OF 2010

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the material aspects in the representation dismissed Ext.P5 representation. It is in this background this writ petition is filed.

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Heard learned senior counsel for the petitioner and respective counsel for the respondents, perused the documents on record and pleadings. Having considered the rival submissions made across the bar, I am of the considered opinion that, the subject matter raised in the writ petition is fully based on factual circumstances, which are not expected to venture upon by resorting to the proceedings under Article 226 of the Constitution of India. Therefore, the petitioner is not entitled, to succeed in this writ petition. However, I leave-open the liberty of the petitioner to seek the remedies under law if any available.

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Writ petition is dismissed with the above observation.

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SHAJI P. CHALY, JUDGE

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R.AV

Hussain v. Nilambur Co-Op. Urban Bank Ltd. and Ors.

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Hussain v. Nilambur Co-Op. Urban Bank Ltd. and Ors.

Case brief

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