Remanded

Sunilkumar S. v. Anandakumar K.

Kerala HC7 Mar 2018OP(C)/204/2018

Case brief

AI extract

What is this about?

This civil petition challenged an order lifting attachment of property, alleging the security offered was inadequate. The High Court rejected the immediate merit consideration, remitted the matter to the trial court for fresh hearing and evidence adduction regarding the property valuation by both parties within six weeks.

What did the court decide?

The original petition was disposed of by remitting the matter to the Sub Court, Attingal, for a fresh hearing and decision on evidence within six weeks.

Sunilkumar S. Vs Anandakumar K. — Property and Title | Kerala HC (2018)

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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 ALEXANDER THOMAS

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WEDNESDAY, THE 7TH DAY OF MARCH 2018 / 16TH PHALGUNA, 1939

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OP(C).No. 204 of 2018

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OS 27/2017 of PRINCIPAL SUB COURT,ATTINGAL

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PETITIONER:

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SUNILKUMAR S., AGED 52 YEARS, S/O.SUNDARESAN, "SREELAKSHMI", REGHUNATHAPURAM, CHERUKUNNAM, VARKALA VILLAGE & TALUK, THIRUVANANTHAPURAM DISTRICT

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BY ADVS.SRI.P.SIVARAJ SRI.I.P.VARGHESE SMT.M.M.LAIJU NISSA

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RESPONDENT(S):

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1. ANANDAKUMAR K., AGED 49 YEARS, S/O.KUTTAN PILLAI, REVATHIYIL, RAMACHANVILA, CHITTATTINKARA DESOM, ATTINGAL VILLAGE, NOW RESIDING AT "GOPIKA", NAVAIKULAM DESOM, VILLAGE, VARKALA TALUK, THIRUVANANTHAPURAM 695001

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2. AJITHA, AGED 47 YEARS, "GOPIKA", NAVAIKULAM DESOM, VILLAGE, VARKALA TALUK, THIRUVANANTHAPURAM 695001

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THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 07-03-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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PBS

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OP(C).No. 204 of 2018 (O)

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APPENDIX

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PETITIONER(S)' EXHIBITS

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EXHIBIT P1 TRUE COPY OF THE FAIR VALUE OF LAND PUBLISHED ON 01.04.2010 COMPRISED IN RE SURVEY NO. 225 OF NAVAIKULAM VILLAGE IN CHIRAYINKEEZHU TALUK EXHIBIT P2 TRUE COPY OF THE IMPUGNED ORDER DATED 30.11.2017 IN IA.NO. 593/2017 IN OS.NO. 27/2017 EXHIBIT P3 TRUE COPY OF THE TITLE DEED NO. 1762/02 DATED 05.09.2002 OF NAVAIKULAM S.R.O. RESPONDENT'S EXHIBIT NIL

/TRUE COPY/

PA TO JUDGE

PBS

15/3/2018

ALEXANDER THOMAS, J.

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O.P.(C) No.204 of 2018

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Dated this the 7^th day of March, 2018

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JUDGMENT

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Exhibit-P2 order dated 30.11.2017 rendered by the Sub Court, Attingal, on I.A.No.593 of 2017 in O.S.No.27 of 2017 is under challenge in this Original Petition (Civil). The said I.A. was filed by the defendants in the suit. The petitioner herein is the plaintiff in the suit. It is averred that there was an attachment of the plaint schedule property as security for a claim of Rs.20,50,000/-. But, as per the present impugned ExhibitP2 order, the court below has lifted the attachment of the plaint schedule property as against the offering of a property by the defendants worth only Rs.7,25,000/- approximately, as evidenced by Exhibit-P1 fair value notification, it is alleged. It is in the light of these aspects that the petitioner has filed the instant Original Petition (Civil) with the following prayer :

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“(i) To set aside Ext.P2 order dated 30.11.2017 in I.A.No.593 of 2017 in O.S.No.27 of 2017 of the Subordinate Judge's Court, Attingal.”

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Heard Sri.P.Sivaraj, learned counsel appearing for the

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petitioner. In the nature of the orders proposed to be passed in this petition, notice to the respondents will stand dispensed with.

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OP(C) 204/18

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3. While earlier considering this Original Petition (Civil), this

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Court had passed an order dated 1.2.2018 in this case, which reads as

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follows :

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“Issue notice before admission to the respondents which shall be served by the petitioner through the Advocates appearing for those parties before the court below concerned. The petitioner will produce memo evidencing such service of notice.

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2. The Registry will get a report from the trial court concerned (Court of the Sub Judge, Attingal) who is dealing with O.S.No.27 of 2017 as to the details of the valuation certificate of the security property shown as Rs.30lakhs as referred to in the impugned order dated 30.11.2017 on I.A.No.593 of 2017 in O.S.No.27 of 2017. It is contended by the petitioner that even going by Exhibit-P1 fair value notification, the valuation is shown only as Rs.12,000/- per Are and even if the increment of 50% as per 2014 Government Order is taken into account the fair value would come only to Rs.18,000/- per Are and the total value in that regard for the entire extent of property coming to 40.47 Ares would be only about Rs.7,28,460/-.

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3. The trial court will give a report as to the details of the said valuation certificate mentioned herein above and also to make available an attested photocopy of the said valuation certificate and the connected papers in that regard for the perusal of this Court. Report in this regard should be submitted by the trial court concerned within 5 days.”

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In pursuance of the said order dated 1.2.2018, the Sub Court, Attingal, has furnished a report dated 7.2.2018 to the Registry of this Court, wherein it has been stated that as per the valuation certificate dated 7.9.2017 of the Tahsildar, Varkala, an immovable property having an extent of 40.47 Ares comprised in Block No.23 in Re-Survey No.225/1-1 as per Thandaper account No.1139 of Navaikulam Village in Varkala Taluk belongs to one Sri.Ananthakumar and Ajitha, the first and second defendants in the suit and the said property is having an estimated value of Rs.30,00,000/-. It is also stated that a security bond was executed by the defendants in favour of the court by producing the

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OP(C) 204/18

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original title deed, tax receipt, encumbrance certificate and valuation certificate. A copy of the valuation certificate of Tahsildar, Varkala, etc. was also made available in the said report for the perusal of this Court. After going through the said valuation certificate, this Court had passed an order on 14.2.2018, which reads as follows :

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“Petitioner's counsel will serve a copy of this Original Petition (Civil) to the learned Senior Government Pleader to enable him to get instructions from the Tahsildar, Varkala. Learned Senior Government Pleader will file a statement of the Tahsildar, Varkala, as to the basis on which he has issued the valuation certificate for Rs.30lakhs, when according to the petitioner, the total value of the property based on Fair Value Notification would come only about Rs.7,28,460/-.

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2. According to the petitioner, even going by Ext.P1 Fair Value Notification, the fair value per Are of the property in RS No.225/1 would come only to Rs.12,000/- and even adding the increment of 50% as per 2014 Government Order, the fair value as per Are would come only to Rs.12,000/- and if that be so, the total value for the entire extent of property would come to Rs.7,28,460/-. Therefore, the valuation shown by the Tahsildar based on the Village Officer's enquiry that the fair value of the property would come to Rs.30lakhs is inflated and unrealistic.

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3. The Tahsildar, Varkala, will file a statement as to the basis on which he has valued the property as Rs.30lakhs as shown in the valuation certificate No.B(2)/16695/17/K.Dis dated 7.9.2017 issued by the Taluk Officer, Varkala, and also as to the fair value of the property based on the Fair Value Notification which is now prevailing. The statement should also disclose as to whether the Village Officer has conducted the site inspection of the property and whether the property is waterlogged, etc. The statement in that regard shall be filed within ten days time. Registry to show the name of the learned Senior Government Pleader (Sri.M.I.Johnson) also in the cause list.”

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Now in furtherance of the said order dated 14.2.2018, learned Senior Government Pleader has made available the written instructions of the Tahsildar, Varkala, as per letter dated 21.2.2018, wherein it has been stated that document No.2007 of 2016 of the S.R.O., Navaikulam, was considered for assessing the market value of the property for which valuation certificate was sought. It is also stated that according to the said document, an extent 3.04 Ares of land comprised in Block No.23,

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OP(C) 204/18

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R.S.No.236/26 of Navaikulam village, which lies adjacent to the property comprised in R.S.No.225/1-1 was sold for Rs.2,50,000/- of which an amount fixed per Are was Rs.82,236/-. Further it is stated that since the variations in the area included the value of the property, 10% was reduced from the value of the property as per the document No.2007/2016 and thus an amount of Rs.74,013/- was assessed as the market value per Are, for the property comprised in R.S.No.225/1-1 of Navayikulam Village and that thus the total amount comes to Rs.29,95,306 for 40.47 Ares and the same was rounded as Rs.30lakhs and the valuation certificate was issued accordingly.

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The suit is filed for recovery of Rs.20,50,000/-. According to the petitioner, going by the Exhibit-P1 fair value notification, the value of the offered property coming to 40.47 Ares would come only to Rs.7,28,460/-, etc. As per the Tahsildar’s valuation certificate, the value of the property shown as about Rs.30,00,000/-. Now the petitioner has filed I.A.No.442 of 2018 in this O.P.(C), whereby Exhibit-P3 has been produced as an additional document. Exhibit-P3 is stated to be the true copy of title deed No.1762 of 2002 dated 5.9.2002 of Navaikulam S.R.O. It is stated in the said additional affidavit of the petitioner that the above property is inadequate to provide security for the suit amount of Rs.20,50,000/- as the market value of the said property shown in title deed No.1762 of 2002 is only Rs.2,00,000/- as per Exhibit-P3 title deed

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OP(C) 204/18

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dated 5.9.2002 of Navaikulam S.R.O. This Court is not in a position to consider the merits of the contentions in that regard. Accordingly, the matter in relation to Exhibit-P2 will stand remitted to the Sub Court, Attingal. The petitioner will be given an opportunity to adduce evidence regarding the value of the property in question. The defendants may also be given opportunity to adduce evidence in support of their claims and after hearing both sides, a decision may be taken afresh by the trial court, without much delay, preferably within a period of six weeks from the date of production of a certified copy of this judgment. The petitioner will produce a certified copy of this judgment before the Sub Court, Attingal, for necessary information.

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With these observations and directions, the Original Petition (Civil) will stand finally disposed of.

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ALEXANDER THOMAS JUDGE

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OP(C) 204/18

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ALEXANDER THOMAS, J.

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O.P.(C) No.204 of 2018

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Dated this the 1^st day of February, 2018

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O R D E R

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Issue notice before admission to the respondents which shall be served by the petitioner through the Advocates appearing for those parties before the court below concerned. The petitioner will produce memo evidencing such service of notice.

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The Registry will get a report from the trial court concerned (Court of the Sub Judge, Attingal) who is dealing with O.S.No.27 of 2017 as to the details of the valuation certificate of the security property shown as Rs.30lakhs as referred to in the impugned order dated 30.11.2017 on I.A.No.593 of 2017 in O.S.No.27 of 2017. It is contended by the petitioner that even going by Exhibit-P1 fair value notification, the valuation is shown only as Rs.12,000/- per Are and even if the increment of 50% as per 2014 Government Order is taken into account the fair value would come only to Rs.18,000/- per Are and the total value

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OP(C) 204/18

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in that regard for the entire extent of property coming to 40.47 Ares would be only about Rs.7,28,460.

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The trial court will give a report as to the details of the said valuation certificate mentioned herein above and also to make available an attested photocopy of the said valuation certificate and the connected papers in that regard for the perusal of this Court. Report in this regard

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should be submitted by the trial court concerned within 5 days.

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List on 9.2.2018.

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ALEXANDER THOMAS JUDGE

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Sunilkumar S. v. Anandakumar K.

Case brief

What is this about?

What did the court decide?

Sunilkumar S. v. Anandakumar K.

Case brief

What is this about?

What did the court decide?

What the court decided

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