Disposed

K.Ganesan v. Bank of Baroda

Kerala HC6 Jun 2016WP(C)/7611/2008

Case brief

AI extract

What is this about?

Petitioner challenged a possession notice pasted on his property by Bank of Baroda alleging SARFAESI Act proceedings against a wrong dirrt. Court held notice was an inadvertent mistake and restrained bank from proceeding against petitioner's property for a different borrower's dues. Petition disposed.

What did the court decide?

Directs respondent bank not to proceed against petitioner's property for realisation of amounts due from 4th respondent.

K.Ganesan Vs Bank of Baroda — 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.K.JAYASANKARAN NAMBIAR

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MONDAY, THE 6TH DAY OF JUNE 2016/16TH JYAISHTA, 1938

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WP(C).No. 7611 of 2008 (F)

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PETITIONER(S):

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K.GANESAN, S/O.KANIYARAKKAL KANARAN RESIDING AT NEDUNGATUR DESOM, P.O.KOTTOOLI, KOZHIKODE.

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BY ADVS.SRI.V.V.SURENDRAN SRI.P.A.HARISH

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RESPONDENT(S):

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1. BANK OF BARODA REPRESENTED BY CHAIRMAN AND MANAGING DIRECTOR, BARODA CORPORATE CENTER, C 26,G-BLOCK, BANDRA KURLA COMPLEX, BANDRA EAST MUMBAI 400051

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2. AUTHORISED OFFICER AND ASSISTANT GENERAL MANAGER, BANK OF BARODA, KERALA REGION, ERNAKULAM, KOCHI 682 011.

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3. BRANCH MANAGER

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BANK OF BAROADA, MAVOOR ROAD BRANCH, KOZHIKODE-1.

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4. T.P.BABU, AGED 45 YEARS, S/O.DEVADASAN RESIDING AT UDAYA NIVAS, THOTTAPPADATH, BEYPORE AMSOM DESOM, KOZHIKODE TALUK.

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5. NELLIKKAMKANDIYIL KANARAN, AGED 67 YEARS S/O.RARUKUTTY, RESIDING AT VALIYAPARAMBA DESOM, KIZHAKKOTH VILLAGE, KOZHIKODE TALUK.

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BY SRI.DEVAN RAMCHANDRAN, SC BY SRI.K.M.ANEESH, SC

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 06-06-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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das

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WP(C).No. 7611 of 2008 (F)

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APPENDIX

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PETITIONER'(S) EXHIBITS:

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EXT.P1 03.01.2006	COPY OF THE	SALE DEED DOCUMENT NO.35/2006 DATED OF KODUVALLY SUB REGISTRY.
EXT.P2	COPY OF THE 10.08.1960.	PARTITION DEED DOCUMENT NO.2474/1960 DATED
EXT.P3	COPY OF THE	KRAYA CERTIFICATE DATED 18.06.2004.
EXT.P4	COPY FO THE	BUILDING PERMIT DATED 23.11.2002.
EXT.P5	COPY OF THE DATED 07.02.	RECEIPT EVIDENCING PAYMENT OF LAND REVENUE 2006.
EXT.P5(a)	COPY OF THE DATED 09.02.	RECEIPT EVIDENCING PAYMENT OF LAND REVENUE 2007.
EXT.P6	COPY OF THE BUILDING TAX	PROPERTY TAX RECEIPT IN RESPECT OF PAYMENT OF DATED 23.02.2007.
EXT.P6(a)	COPY OF THE BUILDING TAX	PROPERTY TAX RECEIPT IN RESPECT OF PAYMENT OF DATED 13.11.2007.
EXT.P7	COPY OF THE	PHOTOGRAPH
EXT.P8	COPY OF THE PUBLICATION.	POSSESSION NOTICE IN THE NEWS PAPER
EXT.P9	COPY OF THE	ENCUMBRANCE CERTIFICATE.
EXT.P10	COPY OF the 15.04.2008.	NOTICE ISSUED BY THE 1ST RESPONDENT DATED
EXT.P11	COPY OF THE AND HIS WIFE	WRITTEN STATEMENT FILED BY THE 5TH RESPONDENT .
EXT.P12	COPY OF THE MUNSIFF-II,	JUDGMENT IN OS 298/2008 BEFORE THE ADDITIONAL KOZHIKODE.
EXT.P13	COPY OF THE	DECREE IN OS NO.298/2008 BEFORE THE
ADDITIONAL		MUNSIFF-II, KOZHIKODE.

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RESPONDENT'(S) EXHIBITS: NIL

//TRUE COPY//

PA TO JUDGE

das

A.K.JAYASANKARAN NAMBIAR, J.

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W.P.(C). No. 7611 of 2008

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===================================================== Dated this the 6^th day of June, 2016

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JUDGMENT

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The petitioner is stated to be the owner in possession of an extent of 37 cents of land and building bearing No.7/169 in Sy. No.11/2 (R.S. No.14/4) of Valiyaparamba desom, Kizhakkoth Village, Kozhikode Taluk and District. The petitioner had purchased the said extent of land and building from the 5^th respondent as per Ext.P1 sale deed. In the writ petition, the petitioner is aggrieved by Ext.P8 possession notice that was published by the respondent bank, wherein proceedings under the SARFAESI Act are stated to have been taken against the property comprising of an extent of 28 cents of land together with a building therein, in the same survey number and location as the property of the petitioner. It is stated that the respondents had pasted the possession notice in the property of the petitioner, and it was apprehending a possible action against the petitioner's property pursuant to the said possession notice pasted on the property, that the petitioner approached this Court, impugning the action of the respondent bank under the SARFAESI Act. In the writ petition, it is the specific case of the petitioner that he has no connection with the respondent bank, in that he has not either availed a loan or

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W.P.(C). No. 7611 of 2008

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stood surety/guarantee to any loan availed by any other person from the said bank, and hence the action initiated by the respondent bank, if against his property, is wholly illegal. It is also the case of the petitioner that when he obtained an encumbrance certificate from the Sub Registrar's Office, Koduvally, on 22.11.2007, the said certificate indicated that the 5^th respondent, who was the original owner of a larger extent of land, and from whom the petitioner had purchased the extent of land covered in Ext.P1 sale deed, had also sold the same extent of land to yet another person (the 4^th respondent in the writ petition) and the 4^th respondent, was the person who had approached the respondent bank for a loan in the repayment of which he had committed a default. It is the case of the petitioner, therefore, that this is a case where the respondent bank appears to proceeding against a wrong person for recovery of defaulted loan amounts.

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The learned Standing Counsel for the respondent bank would submit that in Ext.P8 possession notice, the property referred to is an extent of 28 cents of land with a building therein in Sy.No. 11/2 (R.S.No.14/4) of Valiyaparamba desom, Kizhakkoth Village, Kozhikode and the number of the building situated in the property is KP 4/65. It is also pointed out that, while describing the

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W.P.(C). No. 7611 of 2008

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boundaries to the said property, in Ext.P8 possession notice, the eastern boundary is shown to be land belonging to the petitioner. It is also stated that the respondent bank is proceeding only against properties that have been mortgaged to it by the 4^th respondent and hence the recovery steps initiated can only be against the property belonging to the 4^th respondent and not against the property belonging to the petitioner herein.

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I have heard the learned counsel appearing for the petitioner as also the learned Standing Counsel appearing for the respondent bank. There is no appearance for the 4^th respondent, despite notice.

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On a consideration of the facts and circumstances of the case as also the submissions made across the bar, I find from Ext.P1 sale deed, and Ext.P9 encumbrance certificate produced by the petitioner, that the petitioner had purchased an extent of 37 cents of land with a house bearing No.7/169 in Sy. No.11/2 (R.S. No.14/4) in Kizhakkoth Village, Kozhikode District from the 5^th respondent. The 5^th respondent also appears to have sold another extent of 28 cents of land in the same survey number to the 4^th respondent, as is evident from the description of the properties in

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W.P.(C). No. 7611 of 2008

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Ext.P8 possession notice. Since the extent of land shown in Ext.P8, as also the house number of the building situated therein, is different from the extent of land and house number that was purchased by the petitioner through Ext.P1 sale deed, there is reason to assume that the pasting of the possession notice in the property of the petitioner was an inadvertent mistake on the part of the respondent bank. At any rate, since the petitioner is not a person who has taken any loan from the respondent bank or stood guarantee/surety to any person who has availed any such loan from the respondent bank, it is obvious that the respondent bank does not intend to proceed against the petitioner or his property for recovery of any amounts. Thus, without prejudice to the right of the respondent bank to proceed against the properties, which are mortgaged to it by the 4^th respondent, this writ petition is closed by holding that the respondent bank shall not proceed against the property of the petitioner for realisation of the amounts due from the 4^th respondent.

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Sd/-

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A.K.JAYASANKARAN NAMBIAR JUDGE

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das /06.06.2016

K.Ganesan v. Bank of Baroda

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K.Ganesan v. Bank of Baroda

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