Partly allowed

Ranjan M. v. K.Sarojini Amma

Kerala HC13 Aug 2019WA/1861/2015

Case brief

AI extract

What is this about?

High Court Writ Appeals challenging the Single Judge's order on pending execution proceedings. Court held petitioner lacked locus for son's property. Court modified lower order to sequence disposal of twin proceedings at DRT/Tribunal, directing disposal within stipulated timelines.

What did the court decide?

The writ petitions were disposed of. The Recovery Officer to dispose of review petition within two months from today. Tribunal to dispose of Appeal No.13/2012 within three months after the review disp

Ranjan M. Vs K.Sarojini Amma — Banking and Recovery | 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 C.K.ABDUL REHIM

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THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI

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TUESDAY, THE 13TH DAY OF AUGUST 2019 / 22ND SRAVANA, 1941

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WA.No.1861 OF 2015

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AGAINST THE JUDGMENT IN WPC 20956/2008 OF HIGH COURT OF KERALA

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DATED 03-02-2015

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APPELLANTS/ADDITIONAL RESPONDENTS 4 & 5:

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1 RANJAN M.

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S/O. MUTHAIYAN CHETTIAR, SREEMANGALAM, PRACKANAM P.O., PATHANAMTHITTA.

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2 DEEPA SARA VARGHESE D/O.O.V. VARGHESE, KIZHAKKEDATH, COLLEGE ROAD,

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PATHANAMTHITTA.

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BY ADVS. SRI.K.T.SHYAMKUMAR SRI.HARISH R. MENON

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RESPONDENTS/PETITIONER & RESPONDENT 1 TO 3:

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1 K.SAROJINI AMMA, AGED 79, W/O.CHANDRASEKHARAN NAIR, RESIDING AT 'SAROJA' BHAVAN, VALIYAVILA, THIRUMALA P.O., THIRUVANANTHAPURAM. PIN 695 001

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2 GENERAL MANAGER

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CANARA BANK & OTHERS, CANARA BANK, THIRUVANANTHAPURAM. PIN 695 001

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3 THE BRANCH MANAGER CANARA BANK, ANCHAMADA, VATTIYOORKAVU, THIRUVANANTHAPURAM. PIN 695 001

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4 C. VIJAYAKUMAR S/O.LATE CHANDRASEKHARAN NAIR, T.C 8/1403, VALIYAVILA, THIRUVANANTHAPURAM. PIN 695 001 [DELETED]

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W.A.Nos.1861 of 2015 & 1914 of 2015

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[R4. DELETED FROM THE PARTY ARRAY AT THE RISK OF THE PETITIONERS AS PER ORDER DATED 14/09/2015 IN IA.1240/15 IN WA.1861/2015.]

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ADDL.R5 MANI PRASAD PADINHARATHU MADAM RESIDING AT FLAT NO.808, FATIMA BINT OBAIDULLA BUILDING, BEHIND ZULEKHA HOSPITAL, AL NAHDA-2, AL QUISAIS, DUBAI. (ADDL.R5 IS IMPLEADED AS PER ORDER DATED 14/03/2019 IN IA.NO.288/2018 IN WA 1861/15)

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ADDL.R6 C.JAYAKUMAR S/O SAROJINI AMMA, RESIDING AT SAROJABHAVAN, VALIYAVILA, THIRUMALA PO, THIRUVANANTHAPURAM, PIN-695004.

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ADDL.R7 C.SREEKUMARI NAIR D/O SAROJINI AMMA, RESIDING AT SAROJABHAVAN, VALIYAVILA, THIRUMALA PO, THIRUVANANTHAPURAM, PIN-695004.

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ADDL.R8 C.RAJENDRAN S/O SAROJINI AMMA, RESIDING AT SAROJABHAVAN, VALIYAVILA, THIRUMALA PO, THIRUVANANTHAPURAM, PIN-695004. (ADDL.R6 TO R8 ARE IMPLEADED AS PER ORDER DATED 14/03/2019 IN IA.NO.02/2019 IN WA 1861/15)

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BY ADVS. SRI.S.EASWARAN FOR R1, ADDL.R5 TO R8 SRI.SUMAN CHAKRAVARTHY FOR R1 SRI.P.GOPINATH MENON, SC, CANARA BANK R2 AND R3

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THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 23.07.2019, ALONG WITH WA.1914/2015, THE COURT ON 13.08.2019 DELIVERED THE FOLLOWING:

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W.A.Nos.1861 of 2015 & 1914 of 2015

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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 C.K.ABDUL REHIM

¶36

¶37

THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI

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TUESDAY, THE 13TH DAY OF AUGUST 2019 / 22ND SRAVANA, 1941

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WA.No.1914 OF 2015

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AGAINST THE ORDER IN RP 638/2015 IN WP(C) NO.20956/2008 DATED 30-07-2015 OF HIGH COURT OF KERALA

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APPELLANTS/REVIEW PETITIONERS:/(ADDITIONAL RESPONDENTS 4 & 5):

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1 RANJAN M.

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S/O.MUTHAIYAN CHETTIAR,SREEMANGALAM,PRACKANAM.P.O, PATHANAMTHITTA.

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2 DEEPA SARA VARGHESE

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D/O.O.V.VARGHESE,KIZHAKKEDATH,COLLEGE ROAD, PATHANAMTHITTA.

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BY ADVS. SRI.K.T.SHYAMKUMAR SRI.HARISH R. MENON

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RESPONDENTS/RESPONDENTS/PETITIONER & RESPONDENT 1 TO 3:

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1 K.SAROJINI AMMA, AGED 79 YEARS W/O.CHANDRASEKHARAN NAIR, RESIDING AT 'SAROJA' BHAVAN,

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VALIYAVILA,THIRUMALA.P.O,THIRUVANANTHAPURAM. PIN 695 001

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2 GENERAL MANAGER, CANARA BANK,THIRUVANANTHAPURAM PIN 695 001

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3 THE BRANCH MANAGER CANARA

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BANK,ANCHAMADA,VATTIYOORKAVU,THIRUVANANTHAPURAM. PIN 695 001

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W.A.Nos.1861 of 2015 & 1914 of 2015

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4 C.VIJAYAKUMAR S/O LATE CHANDRASEKHARAN NAIR, T.C.8/1403,VALIYAVILA, THIRUVANANTHAPURAM. (DELETED) (R4 DELETED FROM THE PARTY ARRAY AT THE RISK OF THE PETITIONER AS PER ORDER DATED 14/09/2015 IN IA.NO.1239/2015)

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5 ADDL.R5 MANI PRASAD PADINHARATHU MADAM RESIDING AT FLAT NO.808, FATIMA BINT OBAIDULLA BUILDING, BEHIND ZULEKHA HOSPITAL, AL NAHDA-2, ALQUISAIS. DUBAI. (ADDL.R5 IS IMPLEADED AS PER ORDER DATED 14/03/2019 IN IA.NO.299/2018)

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6 ADDL.R6 C.JAYAKUMAR S/O SAROJINI AMMA, RESIDING AT SAROJABHAVAN, VALIYAVILA, THIRUMALA PO, THIRUVANANTHAPURAM, PIN695004.

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7 ADDL.R7 C.SREEKUMARI NAIR D/O SAROJINI AMMA, RESIDING AT SAROJABHAVAN, VALIYAVILA, THIRUMALA PO, THIRUVANANTHAPURAM, PIN695004.

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8 ADDL.R8 C.RAJENDRAN S/O SAROJINI AMMA, RESIDING AT SAROJABHAVAN, VALIYAVILA, THIRUMALA PO, THIRUVANANTHAPURAM, PIN695004. (ADDL.R6 TO R8 ARE IMPLEADED AS PER ORDER DATED 14/03/2019 IN IA.NO.02/2019 IN WA 1914/2015)

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BY ADVS.

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SRI.S.EASWARAN FOR R1, ADDL.R5 TO R8 SRI.SUMAN CHAKRAVARTHY FOR R1

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SRI.P.GOPINATH MENON, SC, CANARA BANK F2 & R3

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THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 23.07.2019, ALONG WITH WA.1861/2015, THE COURT ON 13.08.2019 DELIVERED THE FOLLOWING:

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W.A.Nos.1861 of 2015 & 1914 of 2015

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C.K.ABDUL REHIM

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**R.NARAYANA PISHARADI, JJ. **************************** W.A.Nos.1861 of 2015

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1914 of 2015

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Dated this the 13^th day of August, 2019

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J U D G M E N T

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The appellants are the purchasers of immovable property in

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an auction sale conducted under the Rules in the Second Schedule of the Income Tax Act, 1961 (hereinafter referred to as 'the Rules').

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The son of the first respondent had availed credit facility from the Canara Bank. The first respondent was the guarantor in that loan transaction and she had mortgaged her property to the bank. On default made in repayment of the loan amount, the bank instituted O.A.No.311/2001 before the Debt Recovery Tribunal, Ernakulam (hereinafter referred to as 'the Tribunal') for realisation of the loan amount. The Tribunal passed

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W.A.Nos.1861 of 2015 &

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1914 of 2015

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an ex parte order against the first respondent and her son for realisation of the loan amount with interest. The first respondent filed an application to set aside the ex parte order, but it was dismissed by the Tribunal. Thereafter the bank initiated execution proceedings for realisation of the amount. The Recovery Officer in the Tribunal published Ext.P6 proclamation for sale and put the property of the son of the first respondent in auction. Then the first respondent filed W.P.(C) No.20956/2008 against the officers of the bank (the first and the second respondents in the writ petition) and her son (the third respondent in the writ petition) seeking the following reliefs:

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“ i) Issue a writ of mandamus or any other appropriate writ order or direction directing the respondent number one and two to consider the sale of the property mentioned in Ext.P6 to a 3^rd party to a higher value.

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ii) Issue a writ of mandamus or any other appropriate writ order or direction directing the respondent number one and two to take steps to dispose the property in Ext.P6 with

W.A.Nos.1861 of 2015

& 1914 of 2015

the presence and consent of the petitioner.

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iii) Issue a writ of mandamus directing the 1^st and 2^nd respondent to keep the Ext.P6 in abeyance till the final disposal of the writ petition.

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iv) Grant the petitioner such other appropriate relief as this Hon'ble Court may deem fit and proper to grant on the facts and in the circumstances of the case."

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It appears that, during the pendency of the above said

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writ petition, the property of the son of the writ petitioner, which was mortgaged to the bank, was sold in auction on 19.01.2011. The son of the 1^st respondent had then filed O.P (DRT) No.1546/2011 before this Court for setting aside the sale and for re-conveyance of the property.

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It is seen from the impugned judgment that the 1^st respondent/writ petitioner prayed for urging the plea of her son also in the writ petition, on the ground that he was absconding

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and the prayer in that regard was accepted by the learned Single Judge. Accordingly, the learned Single Judge disposed of W.P.(C)

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W.A.Nos.1861 of 2015 &

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1914 of 2015

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No.20956/2008 and O.P (DRT) No.1546/2011 as per the impugned judgment in W.A.No.1861/2015, by issuing direction to the Tribunal to dispose of the Appeal No.13/2012, within a period

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of four months from the date of the judgment. The auction purchasers, who were subsequently impleaded in the writ petition as additional respondents 4 and 5, have filed the appeal W.A.No.1861/2015 challenging the aforesaid judgment.

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The appellants herein had filed a petition seeking review of the judgment in the writ petition impugned in W.A.No.1861/2015. As per the order dated 30.07.2015, the learned Single Judge dismissed the review petition. The appeal, W.A.No.1914/2015, is filed against the aforesaid order.

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The 1^st respondent/writ petitioner died during the

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pendency of the appeals and her legal representatives have been impleaded in the appeals.

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We have heard learned counsel for the appellants and also the additional respondents in the appeals and also the learned counsel for the bank.

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W.A.Nos.1861 of 2015 &

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1914 of 2015

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On a perusal of the reliefs sought in the writ petition, we find that the petitioner therein was not entitled to any of those reliefs. The reason is that, the reliefs prayed for in the writ petition were not in respect of the property of the writ petitioner, which was mortgaged to the bank, but with respect to the property of her son. Though the writ petition was filed by the mother stating that whereabouts of her son were not known and she was not able to contact him, we find that it is a fallacious contention. The writ petition filed in the year 2008 contained averments to the effect that, whereabouts of the son of the writ petitioner were not known. But the very fact that the son of the writ petitioner filed O.P (DRT) No.1546/2011 in the year 2011, after the sale of his property in auction, would indicate that he was very much available. In such circumstances, the writ petitioner could not have sought any relief against the sale of the property owned by her son.

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At this juncture, a recapitulation of the events that occurred after the filing of the writ petition is necessary. The

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W.A.Nos.1861 of 2015 &

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1914 of 2015

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proclamation for sale of the property of the son of the writ petitioner was made on 06.12.2010. The auction sale was conducted on 19.01.2011. The writ petitioner filed an application as I.A.No.721/2011 for setting aside the sale, before the Recovery Officer. The said application was dismissed on 22.03.2011. The sale was confirmed on 29.03.2011. The writ petitioner filed Appeal No.13/2012 on 06.09.2012 before the Tribunal for setting aside the confirmation of sale. She had also filed an application as I.A.No.2461/2012 to review the order in I.A.No.721/2011. In the application for review, the writ petitioner deposited the entire sale consideration on 24.10.2012.

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The learned Single Judge has specifically held (in paragraph 6 of the impugned judgment) that the various prayers made in the writ petition could not be considered since valid proceedings were pending before the Tribunal. However, the learned Single Judge dealt with the contention whether the application I.A.No.721/2011 was filed under Rule 60 or Rule 61. Learned Single Judge found that the aforesaid contention could

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W.A.Nos.1861 of 2015 &

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1914 of 2015

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be raised before the Tribunal and if the aforesaid application was filed as one under Rule 61, the irregularities, if any, in considering the sale could be considered in that application.

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The grievance of the appellants is that, the Appeal No.13/2012 filed by the 1^st respondent/writ petitioner is not against the dismissal of I.A.No.721/2011, as stated in the impugned judgment, but the aforesaid appeal was filed by her for setting aside the order confirming the sale and the order for delivery of the property. The appellants contend that, on the basis of the observations made in the impugned judgment, the writ petitioner had taken steps to bring in the question of irregularity of sale also in the appeal filed before the Tribunal, by seeking amendment to the memorandum of appeal filed before the Tribunal.

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After hearing the counsel appearing for both the parties at length, we are of the considered view that the Recovery Officer and the Tribunal have to dispose of the review and the appeal, untrammeled by any of the observations made in

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W.A.Nos.1861 of 2015 & 1914 of 2015

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the impugned judgment. It would be proper for the parties to raise all their contentions, including the question regarding maintainability of the appeal and the review petition, before the authorities concerned.

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Learned counsel for the additional respondents in the appeals has requested that a direction may be given to the Tribunal to dispose of the appeal pending before it only after the disposal of the review petition which was filed by the writ petitioner before the Recovery Officer.

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Consequently, the impugned judgment in W.P.(C) No.20956/2008 is modified as follows: The review petition filed by the writ petitioner against the dismissal of I.A.No.721/2011, if already not disposed of, shall be disposed of by the Recovery Officer within a period of two months from today. Appeal No.13/2012 filed by the writ petitioner before the Tribunal shall be disposed of by the Tribunal only after disposal of the aforesaid review petition. The appeal shall be disposed of by the Tribunal within a period of three months from the date of disposal of the

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W.A.Nos.1861 of 2015 &

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1914 of 2015

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aforesaid review petition. However, if the review petition has already been disposed of by the authority concerned, the Tribunal shall dispose of the aforesaid appeal within a period of three months from today. It is made clear that the parties are at liberty to raise all their contentions before the authority concerned and the Tribunal, including the contentions regarding maintainability of the review petition and the appeal. The Recovery Officer and the Tribunal shall dispose of the review petition and the appeal, untrammeled by any of the observations contained in the impugned judgment in W.P.(C) No.20956/2008 passed by the learned Single Judge.

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The writ appeals are disposed of as above. No costs.

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(sd/-)

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C.K.ABDUL REHIM, JUDGE

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(sd/-)

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R.NARAYANA PISHARADI, JUDGE

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jsr/01/08/2019

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True Copy

Ranjan M. v. K.Sarojini Amma

Case brief

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Ranjan M. v. K.Sarojini Amma

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