The High Court set aside a single judge order that allowed a borrower to retain possession of a hypothecated residential house during the bank's sale process to recover a loan pending (One Time Settlement).
Set aside impugned order allowing possession retention; directed respondent to hand over vacant possession within three weeks.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR.HRISHIKESH ROY
&
THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR
FRIDAY, THE 14TH DAY OF JUNE 2019 / 24TH JYAISHTA, 1941
W.A.No.1350 of 2019
AGAINST THE JUDGMENT IN WP(C)10331/2019 of HIGH COURT OF KERALA DATED 9.4.2019
APPELLANTS/RESPONDENTS:
BY ADVS. SRI.K.M.ANEESH SRI.ADARSH KUMAR SRI.BIJU VARGHESE ABRAHAM SRI.DILEEP CHANDRAN SRI.K.SANTHOSH KUMAR (KALIYANAM) SRI.SHASHANK DEVAN
RESPONDENT/WRIT PETITIONER:
SUBHADRA, W/O. RAJAN PANICKER, SUNITHA SADANAM, KUREEPUZHA P.O., PERINAD, KOLLAM.
SRI.GEORGE VARGHESE
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 14.06.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
W.A.No.1350 of 2019
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JUDGMENT
Hrishikesh Roy, C.J.
This case was adjourned on 3.6.2019 with the following order:
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The petitioner's residential house was provided as security for the loan availed by her son. Since repayment of the loan could not be made, the Central Bank of India, initiated recovery proceedings under the Securitisation and Reconstructions of Financial Assets and Enforcement of Security Interest Act, 2002. At that stage, the petitioner filed the W.P. (C)No.10331 of 2019 seeking a direction on the Bank to consider her offer, under the One Time Settlement (OTS) Scheme. She also prayed for temporary retention of the residential property with the assurance that the Bank may take symbolic possession thereof and she would surrender the house when the intended sale by the Bank, is concluded. Such temporary respite was granted by the learned Single Judge under the impugned judgment dated 9.4.2019.
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the appellant can vacate the hypothecated property. But he repeats his submission
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: 3 :
to the effect that the Bank can effect the sale of the hypothecated property, even while the appellant retains occupation of the property. In respect of such contention, the learned counsel for the Bank Sri.Santhosh Kumar.K submits that the Bank will not attract buyer or get a fair offer, if the property is not in vacant position, at the time of sale.
SD/HRISHIKESH ROY CHIEF JUSTICE
SD/A.K.JAYASANKARAN NAMBIAR JUDGE
jes
2 issues framed by the court
Whether the bank can sell a hypothecated residential property while the borrower retains occupation of it.
Whether the direction allowing the borrowers to retain possession during the sale process should be set aside.
Central Bank of India, Regional Office, Ernakulam and Bank Branch Manager, Anchalumood
Subhadra
Hrishikesh Roy
A.K.Jayasankaran Nambiar
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
