Allowed

Hameed Kidanhi v. Sree Gokulam Chit & Finance Company (P) Ltd.

Kerala HC23 Oct 2019OP(C)/1932/2018

Case brief

AI extract

What is this about?

High Court quashed an impugned execution proclamation fixing the upset price of mortgaged property, holding it impermissible as a non-speaking order that ignored petitioner's objections on price and bank's prior charge.

What did the court decide?

Set aside Ext.P7 order dated 14.06.2018; directed lower court to pass fresh order after reasonable opportunity to parties.

Hameed Kidanhi Vs Sree Gokulam Chit & Finance… — Execution and Attachment | Kerala HC (2019)

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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 B.SUDHEENDRA KUMAR

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WEDNESDAY, THE 23RD DAY OF OCTOBER 2019 / 1ST KARTHIKA, 1941

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OP(C).No.1932 OF 2018(O)

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AGAINST THE ORDER/JUDGMENT IN EP 104/2017 DATED 14-06-2018 OF ADDITIONAL DISTRICT COURT, THALASSERY

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PETITIONER/S:

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HAMEED KIDANHI S/O MAMMAD, RESIDING AT KIDANHI HOUSE, PERINGATHUR AMSOM, KARIAD, KIDANHI PO,KANNUR DISTRICT-670675.

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BY ADVS. SRI.C.A.MAJEED SRI.K.H.ASIF SMT.MOLTY MAJEED SMT.MAGGIE V MATHUNNY KUM.NEETHU SOMAN

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RESPONDENT/S:

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SREE GOKULAM CHIT & FINANCE COMPANY (P) LTD. NO.66, ARCOT ROAD, KODAMBAKKOM, CHENNAI-24, REPRESENTED BY IT'S POWER OF ATTORNEY HOLDER, C.V SIVADASAN, ASSISTANT MANAGER, M/S SREE GOKULAM CHIT & FINANCE COMPANY (P) LTD, NADAPURAM BRANCH, KANNUR DISTRICT-673542.

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R1 BY ADV. MAHESH V RAMAKRISHNAN

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THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 23.10.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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OP(C).No.1932 OF 2018(O)

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JUDGMENT

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In this original petition, the petitioner challenges Ext.P7 order passed by the court below fixing the upset price at Rs.2,00,000/- in the proclamation.

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Heard.

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The learned Counsel for the petitioner has submitted that Ext.P7 is not a speaking order and hence Ext.P7 cannot be sustained. The petitioner admittedly filed objection to the proclamation. It is contended that the upset price fixed by the court below in the proclamation was lesser than the market

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value of the property. It is further contended that the

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property is under mortgage with the bank for availing

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OP(C).No.1932 OF 2018(O)

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a loan and hence the bank is having the first charge over the property. In the said circumstances, the said property cannot be sold in the above execution proceedings.

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It appears from Ext.P7 that the court below

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did not consider any of the above said contentions of

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the petitioner, in accordance with law. No reason was also stated in Ext.P7 for fixing the upset price. Every judicial order must be a speaking order. Since Ext.P7 is not a speaking order, I am inclined to set aside the same.

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In the result, this Original Petition stands allowed, setting aside Ext.P7 order dated 14.06.2018 passed by the court below in E.P.No.104/2017 and the court below is directed to pass order afresh in the matter,

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OP(C).No.1932 OF 2018(O)

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affording reasonable opportunity to both sides to

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substantiate their contentions.

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The parties shall appear before the court below on

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22.11.2019, without further notice.

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SD/-

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B.SUDHEENDRA KUMAR

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JUDGE

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RK/23.10.2019

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OP(C).No.1932 OF 2018(O)

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APPENDIX

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PETITIONER'S/S EXHIBITS:

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EXHIBIT P1 PHOTOCOPY OF THE TAMIL VERSION OF THE AWARD PASSED IN ARBITRATION CASE NO.82 OF 2011 DATED 28.11.2011.

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EXHIBIT P2 PHOTOCOPY OF THE EXECUTION PETITION BEARING NO.104 OF 2017 FILED BEFORE THE LEARNED ADDITIONAL DISTRICT JUDGE, THALASSERY.

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EXHIBIT P3 PHOTOCOPY OF THE ORDER DATED 07.07.2017 PASSED BY THE LEARNED ADDITIONAL DISTRICT JUDGE, THALASSERY.

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EXHIBIT P4 PHOTOCOPY OF THE COUNTER FILED BY THE PETITIONER IN THE ABOVE E.P.

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EXHIBIT P5 PHOTOCOPY OF THE AFFIDAVIT DATED 19.01.2018 FILED BY THE RESPONDENT.

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EXHIBIT P6 PHOTOCOPY OF THE OBJECTION ON THE DSP DATED 23.02.2018.

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EXHIBIT P7 CERTIFIED COPY OF THE ORDER DATED 14.06.2018 BY THE LEARNED ADDITIONAL DISTRICT JUDGE, THALASSERY.

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RESPONDENT'S/S EXHIBITS:NIL

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//TRUE COPY//

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PA TO JUDGE

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Hameed Kidanhi v. Sree Gokulam Chit & Finance Company (P) Ltd.

Case brief

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Hameed Kidanhi v. Sree Gokulam Chit & Finance Company (P) Ltd.

Case brief

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