Writ appeals filed by auction purchasers and review petitioner against Single Judge's order disposing of underlying writ petition were dismissed. Court found proceedings before Debt Recovery Tribunal were more appropriate for adjudicating legality of auction sale.
Direction to dispose review petition within 2 months, followed by appeal within 3 months.
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 MR.JUSTICE C.K.ABDUL REHIM
&
THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI
TUESDAY, THE 13TH DAY OF AUGUST 2019 / 22ND SRAVANA, 1941
WA.No.1861 OF 2015
AGAINST THE JUDGMENT IN WPC 20956/2008 OF HIGH COURT OF KERALA
DATED 03-02-2015
APPELLANTS/ADDITIONAL RESPONDENTS 4 & 5:
S/O. MUTHAIYAN CHETTIAR, SREEMANGALAM, PRACKANAM P.O., PATHANAMTHITTA.
2 DEEPA SARA VARGHESE D/O.O.V. VARGHESE, KIZHAKKEDATH, COLLEGE ROAD,
PATHANAMTHITTA.
BY ADVS. SRI.K.T.SHYAMKUMAR SRI.HARISH R. MENON
RESPONDENTS/PETITIONER & RESPONDENT 1 TO 3:
1 K.SAROJINI AMMA, AGED 79, W/O.CHANDRASEKHARAN NAIR, RESIDING AT 'SAROJA' BHAVAN, VALIYAVILA, THIRUMALA P.O., THIRUVANANTHAPURAM. PIN 695 001
2 GENERAL MANAGER
CANARA BANK & OTHERS, CANARA BANK, THIRUVANANTHAPURAM. PIN 695 001
W.A.Nos.1861 of 2015 & 1914 of 2015
2
[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.]
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)
ADDL.R6 C.JAYAKUMAR S/O SAROJINI AMMA, RESIDING AT SAROJABHAVAN, VALIYAVILA, THIRUMALA PO, THIRUVANANTHAPURAM, PIN-695004.
ADDL.R7 C.SREEKUMARI NAIR D/O SAROJINI AMMA, RESIDING AT SAROJABHAVAN, VALIYAVILA, THIRUMALA PO, THIRUVANANTHAPURAM, PIN-695004.
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)
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
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:
W.A.Nos.1861 of 2015 & 1914 of 2015
3
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM
&
THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI
TUESDAY, THE 13TH DAY OF AUGUST 2019 / 22ND SRAVANA, 1941
WA.No.1914 OF 2015
AGAINST THE ORDER IN RP 638/2015 IN WP(C) NO.20956/2008 DATED 30-07-2015 OF HIGH COURT OF KERALA
APPELLANTS/REVIEW PETITIONERS:/(ADDITIONAL RESPONDENTS 4 & 5):
2 DEEPA SARA VARGHESE
BY ADVS. SRI.K.T.SHYAMKUMAR SRI.HARISH R. MENON
RESPONDENTS/RESPONDENTS/PETITIONER & RESPONDENT 1 TO 3:
1 K.SAROJINI AMMA, AGED 79 YEARS W/O.CHANDRASEKHARAN NAIR, RESIDING AT 'SAROJA' BHAVAN,
VALIYAVILA,THIRUMALA.P.O,THIRUVANANTHAPURAM. PIN 695 001
W.A.Nos.1861 of 2015 & 1914 of 2015
4
BY ADVS.
SRI.S.EASWARAN FOR R1, ADDL.R5 TO R8 SRI.SUMAN CHAKRAVARTHY FOR R1
SRI.P.GOPINATH MENON, SC, CANARA BANK F2 & R3
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:
5
W.A.Nos.1861 of 2015 & 1914 of 2015
C.K.ABDUL REHIM
&
**R.NARAYANA PISHARADI, JJ. **************************** W.A.Nos.1861 of 2015
&
1914 of 2015
Dated this the 13th day of August, 2019
J U D G M E N T
The appellants are the purchasers of immovable property in
an auction sale conducted under the Rules in the Second Schedule of the Income Tax Act, 1961 (hereinafter referred to as 'the Rules').
W.A.Nos.1861 of 2015 &
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1914 of 2015
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:
“ 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 3rd party to a higher value.
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
7
the presence and consent of the petitioner.
iii) Issue a writ of mandamus directing the 1st and 2nd respondent to keep the Ext.P6 in abeyance till the final disposal of the writ petition.
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."
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 1st 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.
and the prayer in that regard was accepted by the learned Single Judge. Accordingly, the learned Single Judge disposed of W.P.(C)
W.A.Nos.1861 of 2015 &
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1914 of 2015
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
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.
pendency of the appeals and her legal representatives have been impleaded in the appeals.
W.A.Nos.1861 of 2015 &
1914 of 2015
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W.A.Nos.1861 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.
W.A.Nos.1861 of 2015 &
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1914 of 2015
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 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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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.
The writ appeals are disposed of as above. No costs.
(sd/-)
C.K.ABDUL REHIM, JUDGE
(sd/-)
R.NARAYANA PISHARADI, JUDGE
jsr/01/08/2019
True Copy
3 issues framed by the court
Whether the learned Single Judge erred in disposing of appeals pending before the Tribunal without adjudicating on the irregularity of sale.
Whether the Tribunal should be directed to dispose of the appeal only after the disposal of the review petition filed by the writ petitioner.
Whether the observations in the impugned judgment should be binding on the Recovery Officer and Tribunal during the pendency of the appeal and review.
1 provisions across 1 enactments
Ranjan M.
Deepa Sara Varghese
K. Sarojini Amma
General Manager, Canara Bank
Branch Manager, Canara Bank, Anchamada
C.K. Abdul Rehim
R. Narayana Pisharadi
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
