Dismissed

Premini @ Prema v. Ranjinisree Rajendran

Kerala HC13 Mar 2018FAO/17/2018

Case brief

AI extract

What is this about?

This appeal challenged the confirmation of a sale of partitioned property following allegations of conspiracy between the Advocate Commissioner and the auction purchaser. The High Court dismissed the appeal, holding that the long interval between notice and sale provided adequate opportunity for intending bidders to arrange funds and that no proof of collusion was adduced.

What did the court decide?

The appeal is dismissed. The sale made under I.A. No. 697 of 2016 is upheld pending the Supreme Court decision regarding the 8th respondent's participation.

Premini @ Prema Vs Ranjinisree Rajendran — Execution and Attachment | Kerala HC (2018)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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THE HONOURABLE MR.JUSTICE P.N.RAVINDRAN

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THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI

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TUESDAY, THE 13TH DAY OF MARCH 2018 / 22ND PHALGUNA, 1939

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FAO.No. 17 of 2018

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AGAINST THE ORDER IN IA 697/2016 IN IA 1362/2011 IN OS 179/2001 OF PRINCIPAL SUB COURT, PALAKKAD DATED 5.1.2018

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APPELLANT/PETITIONER:

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PREMINI @ PREMA, W/O. RAVINDRAN, AGED 56 YEARS, DOOR NO. 88, RADHA VILLA, RADHA NAGAR, MAIN ROAD, CHENNAI.

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BY ADV.SRI.RAJESH SIVARAMANKUTTY

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RESPONDENTS/RESPONDENTS:

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1. RANJINISREE RAJENDRAN

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D/O. RAJENDRAN, AGED 46 YEARS, SREE KAILAS, AYYAPPANKAVU

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GRAMAM, KOTTAYI POST, PALAKKAD-678 572.

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2. BHAGYANATHA,

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H/O. LATE RADHA, AGED 76 YEARS, RESIDING AT NO. 17, LIC FLATS,

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MADHAVAN NAIR ROAD, MAHALINGAPURAM, CHENNAI-600 034.

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3. B. N. SANKAR,

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S/O. LATE RADHA, AGED 52 YEARS, RESIDING AT NO. 17, LIC FLATS,

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MADHAVAN NAIR ROAD, MAHALINGAPURAM, CHENNAI-600 034.

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4. VIDHYA SANKAR,

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D/O. LATE RADHA, AGED 50 YEARS, RESIDING AT NO. 17, LIC FLATS,

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MADHAVAN NAIR ROAD, MAHALINGAPURAM, CHENNAI-600 034.

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5. RAJENDRAN K. V.,

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H/O. LATE PADMA, RESIDING AT 10/44, KALLAYILVEEDU, DURGA VILLAGE, CHITTUR POST, PALAKKAD-678 101.

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6. RAJEEV,

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S/O. LATE PADMA, RESIDING AT 10/44, KALLAYILVEEDU, DURGA VILLAGE, CHITTUR POST, PALAKKAD-678 101.

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7. RAJKAMAL,

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S/O. LATE PADMA, RESIDING AT 10/44, KALLAYILVEEDU, DURGA VILLAGE, CHITTUR POST, PALAKKAD-678 101.

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FAO.No. 17 of 2018

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8. SREERANJINI SUNIL,

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D/O. LATE PADMA, C/O. KRISHNAN, MAPRANATH HOUSE, OPP. HOLLY FAMILY SCHOOL, PULAKKATTUKARA POST, CHITTISSERY, THRISSUR.

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9. M. D. SIVAKUMAR,

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S/O. DHARMALINGAM, 10/21, DIWAN BAHADOOR SHANMUGHAM

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STREET, KILPAUK, CHENNAI-600 010, TAMIL NADU.

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CAVEATOR BY ADV. SRI.RAJESH NAIR

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R1 BY ADV. SRI.SAJAN VARGHEESE K.

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R1 BY ADV. SRI.LIJU. M.P

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R1 BY ADV. SRI.ABE RAJAN

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R9 BY ADV. SRI.RAJESH NAIR

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R6 & 7 BY ADV. SRI.JACOB SEBASTIAN

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R6 & 7 BY ADV. SRI.K.V.WINSTON

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R6 & 7 BY ADV. SMT.ANU JACOB

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THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 13-03-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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P.N. Ravindran &

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R.Narayana Pisharadi, JJ.

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

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F.A.O.No.17 of 2018

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- - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 13^th March, 2018

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JUDGMENT

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P.N.Ravindran, J.

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The appellant is the sole defendant in O.S.No.179 of 2001 on the file of the Court of the Subordinate Judge of Palakkad, a suit instituted by the predecessor-in-interest of respondents 1 to 8 for partition of three items of properties. O.S.No.179 of 2001 was instituted on 23.5.2001 by two sisters Padma and Radha who are the children of late Kalyani Amma and Rajendran. They had in the plaint in O.S.No.179 of 2001 joined their sister Premi @ Prema (the appellant herein) as the sole defendant and prayed for a decree directing division of the plaint schedule properties by metes and bounds and allotment of one such share to each of the plaintiff and the sole defendant. The plaint schedule properties consisted of three items, viz. two parcels of land together with a building therein situate in Chittoor Taluk in Palakkad District and a parcel of land together with a building situate in Chennai. While the suit was pending, Radha, the second plaintiff passed away and thereupon, her legal heirs were impleaded as supplemental plaintiffs 3 to 5. They are respondents 2 to 4 in the instant appeal. Though notice was served, the sole defendant (the

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appellant herein) did not enter appearance and contest the suit for partition. With the result, she was set ex-parte. Consequently, an exparte preliminary decree for partition was passed on 31.3.2006. By that decree, the trial court directed division of the plaint schedule properties into three equal shares and allotment of one such share to the first plaintiff, one such share to supplemental plaintiffs 3 to 5 and one such share to the defendant.

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It appears, after the preliminary decree was passed, Padma, the first plaintiff also passed away and thereupon one among her children, viz. Ranjinisree Rajendran filed F.D.I.A.No.1362 of 2011 for the passing of a final decree for partition. In that application, she had joined the sole defendant as the first respondent, supplemental plaintiffs 3 to 5 as respondents 2 to 4, and her siblings as respondents 5 to 8. In the final decree proceedings, Sreeranjini Sunil (the 8^th respondent herein) who is one among the children of the first plaintiff was set ex-parte on 5.7.2011. In view of the admitted fact that plaint schedule items 1 and 3 are not capable of being divided by metes and bounds, the trial court directed the said two items to be sold by public auction. A public auction was accordingly conducted in respect of items 1 and 3 on 10.8.2015. The upset price fixed for item 1 was Rs.30,00,000/- and for item 3 was Rs.1,95,00,000/-. In the auction held in respect of item 1, ten persons participated. One

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Parameswaran who had quoted Rs.48,05,000/- was the highest bidder. In terms of the auction notice he deposited the sum of Rs.12,01,250/- on the date of the auction. His offer was accepted and the sale in his favour was confirmed and a sale deed was also executed. It appears later, delivery of item 1 was also effected to him. It is conceded at the Bar that an application filed by the sharers for disbursement of the money deposited by the auction purchaser in respect of item 1 is still pending. As regards item 3, only three persons participated in the auction. One Parthasarathy, residing at 18/32, 28^th Street, T.G.Nagar, Chennai – 600 061 who quoted Rs.2,10,00,000/- was the highest bidder. He deposited the sum of Rs.5,00,250/- and prayed for time to deposit the balance amount required to constitute 25% of the bid amount. The Advocate Commissioner thereupon submitted a report dated 11.8.2016 with a prayer that the auction held on 10.8.2015 in respect of items 1 and 3 may be confirmed and the successful bidder may be directed to deposit 75% of the bid amount within 15 days.

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The appellant herein thereupon filed O.P.(C) No.2017 of 2015 in this court challenging the sale of item 3 alone. The appellant contended that in the auction notice the plaint schedule item No.3 was not properly and correctly described and that as a result of the misdescription, many intending bidders kept away. After notice to the

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respondents therein, a learned single Judge of this court allowed O.P. (C) No.2017 of 2015 by judgment delivered on 19.10.2015 on the ground that there was no adequate interval of time between the date of publication of the sale notice and the date of the sale. The learned single Judge also held that as a result thereof there was no adequate publicity. The learned single Judge also held that the property had not been correctly described. The learned single Judge accordingly set aside the sale of plaint schedule item No.3 and directed refund of the amount deposited by Parthasarathy, the successful bidder who was joined as the 9^th respondent therein. The learned single Judge further directed that a fresh sale be held giving full and correct description of the property and by giving at least 30 days notice of the sale. The judgment in O.P.(C) No.2017 of 2015 is extracted below:

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“Petitioner was the defendant in O.S.No.179 of 2001 which was for partition of immovable properties situated in Kerala as well as Thamilnadu. A preliminary decree for partition was passed. In the final decree proceedings it was found that physical division of two items of properties was not possible.So the court ordered sale of the properties by public auction to which none of the parties had any objection. A commissioner was appointed for the sale. The sale was advertised in newspapers both in Kerala and Chennai. Both properties were sold. The dispute is with regard to the sale of the second item of property situated in Kancheepuram District. The commissioner accepted the whole sale price from the 9^th respondent, who was the highest bidder.

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FAO 17/2018

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The sale has not been confirmed by the court. The grievance of the petitioner is that the advertisement was given on 2.8.2015 and the property was sold on 10.8.2015 and the full description of the property was not given in the advertisement, which has affected the price of the property.

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Heard.

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There is no doubt that the property is situated in a commercially important locality in Kancheepuram District in the outskirts of Chennai. A perusal of Ext.P2 advertisement shows that the particulars given in the advertisement were not sufficient for the intending purchasers to know about the importance of the locality. The boundaries of the property were not given. The sale took place on the 8^th day of the advertisement. By no such imagination it can be said that it was reasonable. I am compelled to hold that the above two facts have materially affected the sale of the property. That apart, the commissioner should have notified the intending purchasers that the sale was subject to confirmation by the court. For this reason also, I am inclined to hold that the sale of the second item of property cannot be approved.

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In the result, this O.P. is allowed. The sale of the second item of property in favour of the 9^th respondent is set aside. The amount deposited by him shall be refunded to him forthwith. The court shall ensure that in the advertisement of the sale of the second item of property its full description including the boundaries and the importance of the locality in which it is situated are given. It shall be mentioned that the sale is subject to the confirmation by the court. There shall be at least a gap of 30 days between the advertisement and the sale.”

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Pursuant to the said judgment, item No.3 was again put up for sale on 23.2.2016 after a notice in that regard was duly published in the New Indian Express Daily dated 27.12.2015. In the meanwhile, Sreeranjini Sunil, the 8^th respondent in the appeal filed I.A.No.2369 of 2015 with a prayer that the order passed by the trial court on 5.7.2011 setting her ex-parte in the final decree proceedings may be set aside. The said application was presented on 21.8.2015. In the sale held on 23.2.2016, M.D.Sivakumar, the 9^th respondent herein was the successful bidder, he having quoted the sum of Rs.2,25,00,000/-, Rs.15,00,000/- higher than the amount fetched in the first auction held on 10.8.2015. He deposited with the Advocate Commissioner the sum of Rs.56,25,000/- representing 25% of the bid amount on the date of the auction and the Advocate Commissioner in turn deposited it in court on 25.2.2016. The auction purchaser thereafter deposited the balance bid amout, viz. Rs.1,68,75,000/- on 1.3.2016 and filed I.A.No.1017 of 2016 with a prayer that the sale held on 23.2.2016 may be confirmed. While that application was pending, the appellant herein (the sole defendant in the suit) filed I.A.No.697 of 2016 with a prayer that the sale of item 3 held on 23.2.2016 may be set aside. She had in the affidavit filed in support of the said application which was styled as a petition filed under Order XXI Rule 90 read with section 151 of the Code of Civil Procedure, averred as follows:

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FAO 17/2018

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“I am the petitioner in the above petition. I am a sharer in the property. I have got 1/3^rd right over the properties. I am now residing in the property which is been put in auction yesterday, i.e. on 23.02.2016. The auction is conducted in a miserable way and with malafide intentions by the Advocate commissioner. There were three bidders before starting of the auction out of which 2 o the bidders re sought time of one day. The reason for that was they did not carry with them so much of amount with them. Further more it is pertinent to note that the successful bidder is a man hailing from Madras, having no local address. He had taken an account in the same bank where the commissioner is having account. They did not remit the amount in cash before the commissioner. Further the item number 2 of the property is now also in my possession and enjoyment. The collusive and fraudulent act of the commissioner/auctioneer is caused prejudice to the interest of the sharers. The auction is not conducted at 2 P.M. as stipulated in the publication. Further the terms of the auction is not made available to any body other than to the successful bidder before the starting of the auction. Further it was noticed that the successful bidder is a tool in the hands of the auctioneer. The auctioneer made an announcement to the effect that the successful bidder should remit the amount in cash to the commissioner after the bid is finalised. After this announcement is made 2 of the persons who came to participate in the auction is forced to withdraw their contention as they did not carry that much amount with them. They are asked for a days time for contesting the bid for which all the sharers was also was amenable. But the commissioner refused to adjourn the sale for one day so as to make there is no other bidder other

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than the one who is a tool in the hands of the commissioner. But alarmingly the successful bidder is not brought any amount but he transferred the same to the commissioner's account. I being a shareholder is ready to deposit the amount of Rs.2.25 crores and sale profit of 5% before this court for setting aside the sale which is been fraudulently conducted to defeat the interest of the shareholders in the property. So it is absolutely necessary to set aside the sale which is conducted on 23.02.2016. Otherwise considerable hardship and irreparable injury will be caused to me.

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Hence it is humbly prayed that this hon'ble court may kindly pleased to pass an order to set aside the sale which is been done fraudulently conducted on 23.02.2016.”

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The substance of the averments in the said affidavit is that though there were three bidders, as two of the bidders did not have the requisite 25% of the bid amount, they sought a day's time but it was not granted. She also contended that the successful bidder is a tool in the hands of the Advocate Commissioner. It was also alleged that the successful bidder is a person hailing from Madras having no local address, meaning thereby he is not a resident of Chittoor Taluk or Palakkad District, that he did not remit the amount in cash with the Advocate Commissioner, that he transferred the money from his account which was in the same bank as the bank in which the Advocate Commissioner had an account. She also contended that

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being a shareholder she was ready to deposit the sum of Rs.2,25,00,000/- and sale profit of 5% before the trial court for setting aside the sale. While the said application was pending, the trial court allowed I.A.No.1017 of 2016 filed by the auction purchaser (9^th respondent herein) and confirmed the sale in his favour by order passed on 1.4.2016. The said order reads as follows:

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“Taken up today. Heard. Not opposed. As the petition is not opposed, the petition is only to be allowed. I do so. The petition is allowed. No cost.”

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I.A.No.697 of 2016 was thereafter taken up for

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consideration by the trial court. The appellant examined herself as PW1. One among the persons who is stated to have responded to the sale notice and made an effort to participate in the auction was examined as PW2 and the Branch Manager of State Bank of India, Civil Station Branch, Palakkad was examined as PW3. She also caused production of the account opening form submitted by the auction purchaser in State Bank of India, Civil Station Branch, Palakkad and statement of accounts in respect of the account maintained by him in that bank and they were marked as Exts.X1 and X2. The respondents herein resisted the said application. After considering the rival contentions, the learned trial Judge dismissed I.A.No.697 of 2016 by order passed on 5.1.2018, which is under challenge in this instant appeal.

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In the interregnum, the learned trial judge considered I.A.No.2369 of 2015 filed by the 8^th respondent to set aside the order passed on 5.7.2011 setting her ex-parte, allowed the application and set aside the said order subject to payment of the sum of Rs. 1,000/as costs. By that order, she was allowed to participate in the final decree proceedings. The first respondent herein thereupon filed O.P. (C)No.1903 of 2016 in this court challenging that order, a copy of which was produced and marked as Ext.P4 therein. By judgment delivered on 2.6.2017, a learned single Judge of this court declined to interfere with that order, but clarified that the order can have only prospective effect and that the 8^th respondent can only participate in the final decree proceedings from 20.8.2015 onwards and cannot challenge any event that happened in the final decree proceedings prior to that date. We are informed that challenging the said judgment, the 8^th respondent has moved the Apex Court by filing SLP (C) Diary No.32680/2017 and that the Apex Court has on 23.2.2018, while issuing notice returnable on 27.3.2018 to the respondents therein, passed an interim order staying delivery of item No.3 till the next date of hearing. A copy of the order passed by the Apex Court is incorporated in the records in this appeal.

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We heard Sri.Rajesh Sivaramankutty, learned counsel appearing for the appellant, Sri.Sajan Varghese, learned counsel

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appearing for the first respondent, Sri.Jacob Sebastain, learned counsel appearing for respondents 6 and 7 and Sri.Rajesh.R, learned counsel appearing for the 9^th respondent/auction purchaser. We have also gone through the pleadings and the materials on record.

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The main contention raised before us by the learned counsel for the appellant is that the Advocate Commissioner had declined to two other intending bidders an opportunity to participate in the auction. It was contended that the Advocate Commissioner ought to have, having regard to the stakes involved, adjourned the sale and granted them time to make up the requisite funds to deposit 25% of the bid amount. Though such a contention is not raised in the affidavit filed in support of I.A.No.697 of 2016, it was also contended before us that the sale ought to have been held at the site. As regards the second contention, we are of the opinion that it ought to have been raised before this court when O.P.(C)No.2017 of 2015 was filed. The appellant who had successfully challenged the sale of item No.3 initially held on 10.8.2015 should have in our opinion raised the plea at that stage and got the plea considered and decided on the merits. She cannot in our opinion raise that plea at this stage after item No.3 was sold afresh pursuant to the directions issued by this court in the judgment delivered on 19.10.2015 in O.P.(C)No.2017 of 2015. That apart this was not a plea which was raised before the learned trial

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Judge in I.A.No.697 of 2016. We therefore find no reason to entertain the said plea at this stage.

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As regards the main contention raised before us namely denial of opportunity to two other intending bidders, we are of the opinion that the said contention also does not merit acceptance. This court had while allowing O.P.(C)No.2017 of 2015 directed that there should be a gap of 30 days between the date of the advertisement and the date of the sale. It was in accordance with the said direction that the sale notice was duly published in the New Indian Express daily dated 27.12.2015. The sale was held only on 23.2.2016, 55 days thereafter. In the sale notice it was specifically mentioned that the auction will be conducted on 23.2.2016 at 2.00 p.m., at the Advocate Commissioner’s office as per the terms and conditions. It was specifically stipulated in the terms and conditions that the successful bidder will have to deposit 25% of the bid amount on the date of the sale and the balance within 15 days thereafter. It was also mentioned that the sale is subject to confirmation by the Court of the Subordinate Judge of Palakkad. As the sale was scheduled to be held on 23.2.2016 and the intending purchasers had been given adequate notice, they ought to have in our opinion made arrangements to keep 25% of the bid amount ready for deposit. They ought to have in our opinion made enquiries with the Advocate Commissioner and ascertained the manner

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and method in which the deposit is to be made. In view of the fact that there was a gap of 55 days between the date of the advertisement and the date of the sale, no intending purchaser can be heard to say that he did not have adequate notice or he did not have time to make enquiries regarding the terms and conditions of the sale. Such being the situation, we are of the opinion that no exception can be taken to the impugned sale on that ground. Though it was also contended in the affidavit filed in support of I.A.No.697 of 2015 that the bidder is a tool in the hands of the Advocate Commissioner, nothing has been brought out to prove any prior association between the Advocate Commissioner and the auction purchaser or any agreement entered into between them. Apart from the vague allegations contained in the affidavit, nothing has been brought out to discredit the Advocate Commissioner.

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As the sale was scheduled to be held on 23.2.2016 after public notice, the Advocate Commissioner could not have, except after obtaining the orders of the court adjourned it to another date. The terms and conditions of the sale did not empower the Advocate Commissioner to adjourn the sale. Therefore, for that reason also, we are of the opinion that no exception can be taken to the impugned sale.

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We accordingly hold that there is no merit in the instant appeal.

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The appeal fails and is dismissed. The trial court shall however await the decision of the Apex Court before proceeding further in the matter. The parties to this appeal shall bring the order passed by the Apex Court to the notice of the learned trial Judge.

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(P.N.Ravindran, Judge)

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(R. Narayana Pisharadi, Judge)

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kav/

Premini @ Prema v. Ranjinisree Rajendran

Case brief

What is this about?

What did the court decide?

Premini @ Prema v. Ranjinisree Rajendran

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Parties & counsel

Coram

Case details

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