Dismissed

Apoy Alexander @ Alexander Vadakkedam v. State Bank of India

Kerala HC5 Jul 2018WP(C)/20972/2018

Case brief

AI extract

What is this about?

The petitioner challenged the encumbrance endorsement on his property due to a satisfied decree. The Court verified that the debt was paid and the Sub Court communicated the lifting of attachment in 1998. The Court directed the sub registrar to immediately remove the recording.

What did the court decide?

Directed the 3rd respondent to remove the endorsement in the encumbrance register regarding the property without delay.

Apoy Alexander @ Alexander Vadakkedam Vs State Bank of… — Landlord and Tenant | 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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THURSDAY, THE 5TH DAY OF JULY 2018 / 14TH ASHADHA, 1940

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WP(C).No. 20972 of 2018

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PETITIONER:

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APOY ALEXANDER @ ALEXANDER VADAKKEDAM, AGED 54 YEARS, S/O. LATE M.G.ALEXANDER, ASWATHY GARDENS, MENAMKULAM, KAZHAKKUTTOM, THIRUVANANTHAPURAM - 695 582.

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BY ADVS.SRI.K.M.SATHYANATHA MENON

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SMT.KAVERY.S.THAMPI

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RESPONDENTS:

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1. STATE BANK OF INDIA, BRANCH OFFICE, WILLINGTON ISLAND, WILLINGTON ISLAND,

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KOCHI - 682 003.

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2. THE ASSISTANT GENERAL MANAGER, STATE BANK OF INDIA, ADMINISTRATIVE OFFICE, BROADWAY, ERNAKULAM - 682 031.

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3. THE REGISTRAR,

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SUB REGISTRAR OFFICE, KAZHAKKOOTTOM, THIRUVANANTHAPURAM - 695 582.

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R3 - BY GOVERNMENT PLEADER SMT.A.C.VIDHYA R1 & R2 BY SRI.JITESH MENON, SC, SBI

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 05-07-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C).No. 20972 of 2018 (V)

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PETITIONER'S EXHIBITS :

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EXHIBIT P1 TRUE COPY OF THE APPLICATION FILED AS E.P.NO. 189/1995 DATED 27.9.1995 ALONG WITH THE PROCEEDING SHEET IN E.P.NO.189/1995 OF THE SUB COURT, KOCHI.
EXHIBIT P2 TRUE COPY OF THE BASIC TAX RECEIPT ISSUED BY THE VILLAGE OFFICER, MENAMKULAM VILLAGE, THIRUVANANTHAPURAM DISTRICT DATED 10.07.2017.
EXHIBIT P3 TRUE COPY OF THE RELEVANT PAGES OF THE ENCUMBRANCE CERTIFICATE ISSUED BY THE SUB REGISTRAR OFFICE, KAZHAKKOOTTAM DATED 19.02.2018.
EXHIBIT P4 TRUE COPY OF THE REGISTERED NOTICE WITH ACKNOWLEDGMENT DUE SENT TO THE SECOND RESPONDENT DATED 23.05.2018.
EXHIBIT P5 TRUE COPY OF THE ACKNOWLEDGMENT EVIDENCING RECEIPT OF EXT.P4 BY THE 1ST RESPONDENT DATED 07.06.2018.
EXHIBIT P6 TRUE COPY OF THE PRINT OUT SHOWING TRACK RECORDS WITH RESPECT TO THE DELIVERY OF EXT.P4 TO THE SECOND RESPONDENT.

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TRUE COPY

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P.A. TO JUDGE

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ALEXANDER THOMAS, J.

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W.P.(C)No.20972 of 2018

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Dated this the 05^th day of July, 2018

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JUDGMENT

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The prayers in this writ petition (civil) are as follows:-

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“ i. issue a writ of mandamus or any other appropriate order or direction directing the 3^rd respondent to remove the endorsement made in the encumbrance register regarding petitioner's property comprised in Survey No.244/8 (R.S.No.247/2) in Menamkulam Village, Thiruvananthapuram taluk as the decree in O.S No: 39/88 of Sub Court Cochin has become non-operational and invalid in view of the full satisfaction of the decree;

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ii) issue a writ of mandamus or any other appropriate writ order or direction directing the respondents 1 and 2 to take immediate steps to remove the endorsement made in Ext-P3 encumbrance certificate regarding petitioner's property comprised in Survey No.244/8 (R.S.No.247/2) in Menamkulam Village, Thiruvananthapuram taluk maintained in the office of the 3^rd respondent;

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iii) issue such other reliefs which may deem fit and proper on the facts and circumstances of the case; and

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iv) allow this Writ Petition (Civil) with costs.

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2. Heard Sri.K.M.Sathyanatha Menon, learned counsel

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appearing for the writ petitioner, Smt.A.C.Vidhya, learned Government Pleader appearing for official respondent No.3 and Sri.Jithesh Menon, learned Standing Counsel appearing for respondent Nos.1 and 2 (State Bank of India Authorities).

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W.P.(C)No.20972/2018

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..2..

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This Court while issuing notice before admission had passed

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an order dated 26.6.2018 in this case which reads as follows:-

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“Notice before admission for respondents 1 and 2 is taken by Sri.M.Jithesh Menon, Advocate appearing for the respondent-State Bank of India. Notice before admission for respondent No.3 (SRO, Kazhakkoottom) is taken by the learned Government Pleader.

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2. The learned counsel for the respondentState Bank of India will get specific instructions from his parties as to whether the entire decreetal amount in O.S.No.39 of 1988 on the files of the Sub Court, Cochin, has been realized by them, in execution proceedings or otherwise.

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3. It is submitted by the petitioner's counsel that the execution proceedings in relation to O.S.No.39 of 1988 on the files of the Sub Court, Cochin was later transferred to the Sub Court, Thiruvananthapuram and after the issuance of attachment order by that court in respect of the property of the petitioner, the entire decreetal amount due in those execution proceedings was duly paid by the petitioner to the respondent-State Bank of India. However formal application for lifting the attachment was never filed on behalf of the petitioner and on his enquiry it has been revealed that the case files are no longer available with the Sub Court, Thiruvananthapuram.

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4. Registry will get a report from the Sub Court, Thiruvananthapuram as to whether case files in relation to the execution proceedings in O.S.No.39 of 1988 (decree of which was rendered by the Sub Court, Cochin) and whether the entire decreetal amount was duly satisfied by the petitioner. If Case Files are not available or traceable, those aspects may also be stated in the report.

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The above report is to be submitted by the Sub Court, Thiruvananthapuram within one week.

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Post on 05.07.2018”

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4. Now in compliance of the request made by this Court, the

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Sub Court, Thiruvananthapuram has submitted letter dated 3.7.2018 to

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W.P.(C)No.20972/2018

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..3..

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the Registry of this Court, wherein it has been inter alia stated as

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follows:-

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“xxx xxx xxx

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The record would reveal that the decree was transmitted to the Principal Sub Judge, Thiruvananthapuram for execution and realisation of the deeree amount. In execution of decree the properties in Kazhakuttom-Menamkulam Village were attached.

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The order in WP(C) No.29800/2006 would reveal that the decree holder-bank had already realised the decree debt. Therefore the Hon'ble High Court had directed the Principal Sub Judge, Thiruvananthapuram to communicate the order lifting the attachment to the Sub Registrar, SRO.

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The records would further reveal that my learned predecessor in office had despatched a communication intimating lifting of attachment in respect of properties comprised in Survey Nos.244/13, 244/10, 244/9, 244/8, 247/2, 239/1-2 (Re-survey Nos.204/6, 204/4, 204/2, M- 119/26-2, 213-21-4, 204/3) Kazhakuttom-Menakulam Village to the Sub Registrar, Kazhakuttom. The despatch number has been mentioned in the communication dated 16.06.1998, a copy of which is annexed herewith for reference of the Hon'ble High Court of Kerala. In case the Sub Registrar had not received the order lifting attachment, this court is prepared to send a second communication on the request by the party concerned.”

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Along with the above said letter dated 3.7.2018, the

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Principal Sub Judge, Thiruvananthapuram has also furnished a copy of

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the letter dated 16.6.1998 by that court to the 3^rd respondent-Sub Registrar, Kazhakuttom and it reads as follows:-

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“Whereas the judgment debtor in EP 110/96 on the file of this court who is the 6^th defendant in the above case filed an execution application as EA 109/98 for raising the attachment order in respect of the properties comprised in

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W.P.(C)No.20972/2018

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..4..

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survey Nos.244/13, 244/10, 244/9, 244/8, 247/2, 239/1-2 (Resurvey Nos.204/6, 204/4, 204/2, M-119/26-2, 213-214, 204/3) of Kazhakuttom-Menakulam Village. The said E.A. is allowed as per order dated 4.6.98. Hence the attachment order in respect of the above properties hereby stands raised.”

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6 . A perusal of the above said letter dated 3.7.2018 and the letter dated 16.6.1998 of the Sub Court, Thiruvananthapuram would make it clear that the said court had duly issued an official communication informing the 3^rd respondent/SRO, Kazhakuttom about lifting of the attachment in respect of the properties comprised in various survey numbers including that in Survey Nos.244/8 of Kazhakuttom, Menakulam Village. Accordingly it is ordered that the 3^rd respondent/SRO will ensure that immediate steps are taken to efface the attachment in respect of the above said property of the petitioner, as mentioned in the above said letters dated 3.7.2018 and 16.6.1998, without any further delay. It is submitted by Sri.K.M.Sathyanatha Menon, learned counsel appearing for the writ petitioner that effacement of the attachment required by the petitioner is in respect of item No.11 of Ext.P3(2), viz., Sy.No.244/8. Necessary steps in that regard should be taken by the 3^rd respondent S.R.O. without much delay preferably within a period of two weeks from the date of production of a certified copy of this judgment.

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W.P.(C)No.20972/2018

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..5..

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Petitioner may produce a certified copy of this judgment before the 3^rd respondent/SRO for necessary information and further action.

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With these observations and directions the above writ petition

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(civil) will stand finally disposed of.

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Sd/-

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ALEXANDER THOMAS, JUDGE

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skj

Apoy Alexander @ Alexander Vadakkedam v. State Bank of India

Case brief

What is this about?

What did the court decide?

Apoy Alexander @ Alexander Vadakkedam v. State Bank of India

Case brief

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What did the court decide?

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