Dismissed

Givin C Boban v. Authorised Officer

Kerala HC25 Oct 2016WP(C)/9330/2016

Case brief

AI extract

What is this about?

The Court dismissed a writ petition challenging a Section 13(2) notice and stay granted on failure to remit security deposit. In the second petition, the Court ordered surrender of three properties forthwith, one with a fortnight's notice, and directed that a fourth residential property be sold only if other assets fail to settle liabilities, allowing indulgence to the petitioners.

What did the court decide?

Petitioners directed to surrender possession of some properties forthwith and the fourth property only be sold if necessary to recover the entire liability.

Givin C Boban Vs Authorised 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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TUESDAY, THE 25TH DAY OF OCTOBER 2016/3RD KARTHIKA, 1938

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WP(C).No. 9330 of 2016 (M)

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PETITIONER(S):

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1. GIVIN C.BOBAN, S/O.BOBAN C.K., CHUNGATH HOUSE, KANJIRAKODE P.O., WADAKKANCHERRY, THRISSUR-680 590.

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2. JENNY BOBABN, W/O.BOBAN C.K., CHUNGATH HOUSE, KANJIRAKODE P.O., WADAKKANCHERRY, THRISSUR-680 590.

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3. BOBAN C.K., S/O.KOCHUNNY, CHUNGATH HOUSE,KANJIRAKODE P.O., WADAKKANCHERRY,THRISSUR-680 590.

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BY ADVS.SRI.P.RADHAKRISHNAN (1) SRI.MADHU RADHAKRISHNAN SRI.NELSON JOSEPH SRI.M.D.JOSEPH

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RESPONDENT(S):

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1. THE AUTHORISED OFFICER, SOUTH INDIAN BANK LTD., REGIONAL OFFICE,PALAKKAD, 2ND FLOOR,'GHANIS', FORT MAITHAN, KUNNATHURMEDU P.O., PALAKKAD-678 013.

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2. SOUTH INDIAN BANK LTD., WADAKKANCHERY BRANCH, REPRESENTED BY ITS BRANCH MANAGER, 442/A1-E1, N.P.TOWER, MAIN ROAD, OPP.BUS STAND, WADAKKANCHERY-680 582.

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BY SRI.GEORGE VARGHESE, SC

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 25-10-2016 ALONG WITH WPC.33999/2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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mbr/

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WP(C).No. 9330 of 2016 (M)

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APPENDIX

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PETITIONER(S)' EXHIBITS:

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EXT.P1: TRUE COPY OF THE NOTICE ISSUED UNDER SECTION 13(2) OF THE SARFAESI ACT UNDER SARFAESI ACT DATED 08.12.2015. EXT.P2: TRUE COPY OF THE GUARANTEE INVOCATION LETTER DATED 30.11.2015. EXT.P3: TRUE COPY OF THE POSSESSION NOTICE ISSUED BY THE 1ST RESPONDENT DATED 17.02.2016.

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RESPONDENT(S)' EXHIBITS: NIL ----------------------mbr/

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//TRUE COPY//

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P.S. TO JUDGE

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A.M. SHAFFIQUE, J.

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=============== W.P. (C) Nos. 9330 & 33999 of 2016

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=======================

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Dated this, the 25^th day of October, 2016

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J U D G M E N T

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These two writ petitions have been filed by the same persons who are defaulters to the respondent Bank. WP(C) No.9330/16 had been filed at a stage when possession notice had been issued by the respondent Bank. An interim direction was issued by this Court calling upon the petitioners to remit `15 lakhs on or before 28/4/2016. Stay was granted on such condition. Petitioners did not remit any such amount. Later, when the Advocate Commissioner had issued notice pursuant to a direction issued by the Chief Judicial Magistrate to take possession of the secured asset, WP(C) No. 33999/2016 has been filed.

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I do not think that there is any necessity to keep WP(C) No. 9330/2016 pending. No order is required to be passed in this writ petition and the same is liable to be dismissed.

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The main contention urged by the petitioners with reference to WP(C) No. 33999/16 is that 1^st petitioner has five items of property and three items, viz., 1, 3 and 5 have already been taken

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W.P(C) Nos.9330 & 33999/16

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-:2:-

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possession by the respondent Bank. As far as item No.2 is concerned, there are some tenants and the 1^st petitioner is ready and willing to surrender possession on or before 1/12/2016. In respect of item No.5, petitioners submit that the said item may be proceeded against as a last resort if the Bank is unable to recover the entire amount by sale of item Nos. 1 to 4.

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Learned counsel appearing for the respondent Bank however would submit that unless vacant possession is obtained by the Bank, it may not be possible for the Bank to effect sale of any of the items of property as there will not be sufficient buyers for the property. It is submitted that it is only after taking possession of the secured asset valuation has to be obtained and upset price fixed and the property could be offered for sale.

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Having regard to the aforesaid factual situation arising in the matter, I am of the view that some indulgence can be shown to the petitioners especially in respect of item No.4 property having an extent of 7 cents and a residential building.

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WP(C) No.9330/2016 is dismissed.

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WP(C) No. 33999/16 is disposed of as under:-

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(i) That the petitioners shall surrender possession of item

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W.P(C) Nos.9330 & 33999/16

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-:3:-

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Nos.1, 3 and 5 forthwith to the Advocate Commissioner.

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(ii) The petitioners shall surrender vacant possession of the second item of property to the Advocate Commissioner on or before 1/12/2016.

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(iii) It shall be open for the respondent Bank to proclaim for sale all the items of property including item No.4. However, item No.4 property shall be sold only if Bank is unable to obtain such amount for settlement of the entire liability.

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(iv) If item No.4 property is to be sold in the said proclamation, the petitioners shall surrender vacant possession of the property as and when called upon by the Bank, failing which, it shall be open for the same Advocate Commissioner to take possession of the secured asset.

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Sd/-

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A.M. SHAFFIQUE, JUDGE

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Rp25/10/2016

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//True Copy//

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P.S to Judge

Givin C Boban v. Authorised Officer

Case brief

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What did the court decide?

Givin C Boban v. Authorised Officer

Case brief

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What did the court decide?

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