Disposed

K.R. Usharee v. Indian Bank

Kerala HC7 Nov 2019WP(C)/19633/2011

Case brief

AI extract

What is this about?

The High Court held that the substantial issue regarding delivery of possession is pending before the Chief Judicial Magistrate in MC No. 41/2017. The court disposed of the writ petition by directing the CJM to decide the matter within two months and deferred the petitioner's prayer for pro-rata adjustment until the outcome of the proceedings.

What did the court decide?

The writ petition disposed of. Directions to CJM, Kollam to decide MC No. 41/2017 within two months. Prayer for pro-rata adjustment deferred subject to outcome of MC proceedings.

K.R. Usharee Vs Indian Bank — 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 S.V.BHATTI

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THURSDAY, THE 07TH DAY OF NOVEMBER 2019 / 16TH KARTHIKA, 1941

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WP(C).No.19633 OF 2011(D)

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PETITIONER:

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K.R. USHAREE

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W/O. B.MOHANACHANDRAN NAIR, HARISREE, KOCHUPILAMOODU, KOLLAM.

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BY ADVS. SRI.N.D.PREMACHANDRAN SMT.LALIZA.T.Y.

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RESPONDENTS:

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1 INDIAN BANK – REORESENTED BY BRANCH MANAGER, KOLLAM BRANCH, KOLLAM-691001.

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2 THE AUTHORISED OFFICEDR INDIAN BANK, KOLLAM BRANCH, KOLLAM-691001.

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3 THE TAHSILDAR KOLLAM TALUK KOLLAM-691001.

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4 ADDL. R4. GITA VASNTH, GEETHA BHAVAN, ASRAMAM KOLLAM EAST VILLAGE, KOLLAM.

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(ADDITIONAL R4 IS IMPLEADED AS PER ORDER DATED 21/08/2012 IN IA 1058/2012)

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R1 BY ADV. SRI.ARUN BABU R1 BY ADV. SRI.S.EASWARAN R1 BY ADV. SRI.G.HARIPRASAD R1 BY ADV. SRI.R.KISHORE R1 BY ADV. SRI.K.RAMAKUMAR SR.

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OTHER PRESENT:

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SR. GP. MATHEW GEORGE VADAKKEL., SCS. EASWARAN

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 07.11.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C).No.19633 OF 2011

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JUDGMENT

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Dated this the 7th day of November 2019

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Heard Adv.N.D.Premachandran and Adv. S. Easwaran for the parties.

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Petitioner prays for the following reliefs:-

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i)”To issue a writ of mandamus or other appropriate writ order or direction directing the respondents 1 and 2 put the petitioner in physical possession of the entire 3 acres and 20 cents of land sold as per Ext.P1 sale certificate;

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ii)To issue a writ of mandamus or other appropriate writ order or direction directing the respondents 1 and 2 to take appropriate steps u/s 14 of the SARFEASI Act for taking physical possession of the 28.145 cents of land found short out of 3 Acres 20 cents which is found in the possession of 3^rd parties and to give physical possession to the petitioner;

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iii)To issue a writ of mandamus or other appropriate writ order or direction directing the respondents 1 and 2 to take physical possession of 5.5 cents of land sold by the borrower while the mortgage was

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WP(C).No.19633 OF 2011

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subsisting as per document No.2354 of 1981 out of the 3 acres 20 cents of land sold to the petitioner by the respondents 1 and 2 and give physical possession to the petitioner;

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iv)To issue a writ of mandamus or other appropriate writ or direction directing 3^rd respondent to demarcate 28.145 cents of land with measurement and sketch, alleged to be in the possession of 3^rd parties, out of the 3 acres 20 cents of land sold to the petitioner as per Ext.P1 certificate of sale;

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v)To declare that the petitioner is entitled to get physical possession of the entire properties covered by Ext.P1 sale certificate and subsequent sale deeds executed by the 2^nd respondent in favor of the petitioner;

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A N D

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vi)To pass such other and further orders as are deemed just and necessary in the facts and circumstances of the case.”

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3. The petitioner does not press the prayer

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covered by iii as possession of 5.5 cents, is already

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delivered.

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The circumstances relevant for disposing of

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WP(C).No.19633 OF 2011

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the Writ Petition can summarily be stated thus. The

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petitioner vide sales certificate dated 17/11/2008 (Ext.P1) purchased an extent of 3 acres 20 cents of property, more fully described in Ext.P1. The petitioner at the first instance could take possession of an extent of 291.855 cents as against the total extent of 3 acres 20 cents covered by Ext.P1. The difference of extent between sale certificate and the actual extent of possession delivered is

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the subject matter of this Writ Petition. The complaint of

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petitioner is that the total sale consideration paid by the petitioner is for the purchase of total extent in Ext.P1 and for enjoying the actual and physical possession of entire extent covered by Ext.P1. The petitioner insists that the

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respondent bank puts the petitioner in possession and enjoyment of the balance extent between 3 acres 20 cents

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WP(C).No.19633 OF 2011

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and 291.855 cents. Admittedly, on 10/08/2014 the

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respondent bank put the petitioner in possession of 5.5

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cents and after taking note of further delivery of possession, what remains to be considered in terms of Ext.P1 sale deed is balance extent of 22.645 cents. The petitioner complains that the respondent bank is not moving in the manner either as provided for by law or expected of the respondent Bank in this behalf by an auction purchase. Therefore, the petitioner prays for positive directions from this Court under Article 226 to respondent bank to give effect to Ext.P1 sales certificate in its entirety and deliver possession of total extent of 3

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acres 20 cents.

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Respondent bank has filed statement setting

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out various steps taken by respondent bank in this behalf

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WP(C).No.19633 OF 2011

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for securing the vacant possession of 22.645 cents. To

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state a few steps taken in this behalf, the following details

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are necessary and noted.

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The respondent bank filed CMP for appointment of

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Advocate Commissioner and it was later on realized that the assistance of Taluk Surveyor for exact identification of

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the property described in Ext.P1 is necessary. Therefore CMP No.1157/2019 was filed before CJM Court, Kollam.

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On 16/08/2019 CMP No. 1157/2019 was allowed and the next stage in MC 41/2017 is filing of report by the

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Advocate Commissioner. It is the case of respondent bank

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that subject to the report and further directions the

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Learned Chief Judicial Magistrate issues in this behalf, the

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bank is prepared to discharge this obligations in terms of Ext.P1 sales certificate. It is further stated that the bank

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WP(C).No.19633 OF 2011

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is in no way responsible for the delay in giving possession

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of balance extent of 22.645 cents as well to writ

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petitioner.

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The petitioner insists upon delivery of actual

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possession of 22.645 cents in terms of sales certificate.

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Alternatively the petitioner prays for pro-rata adjustment

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of sale consideration paid by the petitioner for purchasing

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and taking possession of total extent of 3 acres 20 cents, if

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the Bank fails to deliver vacant possession of total extent

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of land coverd by Ext.P1.

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According to Mr.S.Easwaran alternative

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prayer now made by the petitioner is without cause of

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action and this Court ought not to entertain the said prayer

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at this stage of litigation particularly during the pendency

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of MC.No.41/2017 before the CJM, Kollam. He submits

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WP(C).No.19633 OF 2011

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that this Court considers issuing necessary directions to

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CJM, Kollam to pass final orders in MC No. 41/2017 within

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the time stipulated by this Court and the orders that are passed, if facilitate taking possession of balance extent of 22.645 cents, the bank without further loss of time will

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take steps for executing the orders passed by the CJM,

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Kollam.

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After perusing the voluminous record, taking

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note of the circumstances adverted to above and the submissions made on behalf of the respondent bank I am satisfied that the substantial issue on delivery of possession of entire extent in Ext.P1 is pending before CJM Kollam. The Learned Judge had entertained the prayer of

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respondent Bank by appointing Advocate Commissioner etc., the report is awaited. Therefore the grievance of

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WP(C).No.19633 OF 2011

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petitioner can be addressed by directing expeditious

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disposel of MC. No. 41/2017. Hence the Writ Petition is

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disposed of with the following directions:-

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(a) CJM, Kollam considers and disposes of MC

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No. 41/2017 and passes final orders within two months

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from the date of receipt of a copy of this Judgment.

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(b) The prayer of writ petitioner for pro-rata

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adjustment of sales consideration paid by petitioner for Ext.P1 sales certificate is for the present deferred. The

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pro-rata adjustment is subject to the outcome of all the

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steps, the respondent Bank takes in MC No. 41/2017. The

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said claims or prayer is again subject to other objections

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available to respondent Bank in this behalf. So these

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claims and objections are left open for consideration at

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appropriate time in appropriate proceedings.

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WP(C).No.19633 OF 2011

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The writ Petition disposed of.

Sd/-

S.V.BHATTI

JUDGE

RMV

WP(C).No.19633 OF 2011

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APPENDIX

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PETITIONER'S/S EXHIBITS:

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EXHIBIT P1 A COPY OF THE SALE CERTIFICATE DATED 17/11/2008. EXHIBIT P2 COPY OF THE REPORT OF THE VILLAGE OFFICER DATED 31/12/08. EXHIBIT P3 A COPY OF THE COMMUNICATION DATED 07/01/2009. EXHIBIT P4 A COPY OF THE COMMUNICATION DATED 03/02/2009. EXHIBIT P5 A PHOTOCOPY OF JUDGMENT IN WPC NO.7740/2009 DATED 24/03/2009 OF THIS HON'BLE COURT ALONG WITH COPY OF THE COMMUNICATION DATED 02/04/2009. EXHIBIT P6 A COPY OF THE COMMUNICATION DATED 08/03/2010. EXHIBIT P7 A COPY OF THE AFFIDAVIT DATED 08/11/2010. EXHIBIT P8 COPY OF THE JUDGMENT OF THIS HON'BLE COURT IN CONTEMPT CASE (C) NO.422/2010 DATED 23/11/2010. EXHIBIT P9 COPY OF THE DOCUMENT NO.2354/1981 DATED 23/07/81. EXHIBIT P10 (1). A COPY OF THE ORDER OF THE CHIEF JUDICIAL MAGISTRATE, KOLLAM DATED 16/12/2011. (2). COPY OF ORDER DATED 30/05/2013 IN CMP NO. 6994/2011 OF THE CHIEF JUDICIAL MAGISTRATE, KOLLAM. EXHIBIT P11 (1) A COPY OF THE LETTER DATED 05/04/2012. (2). COPY OF ORDER DATED 30/05/2013 IN CMP NO.6995/2011 OF THE CHIEF JUDICIAL MAGISTRATE, KOLLAM. RESPONDENT'S/S EXHIBITS: EXHIBIT R4(A) THE TRUE COPY OF THE TAX RECEIPT IN THE NAME OF THE APPLICANT DATED 19/06/2010. EXHIBIT R1 A TRUE COPY OF THE INTERIM REPORT DATED 15/12/2011 FILED BY THE ADVOCATE COMMISSIONER.

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WP(C).No.19633 OF 2011

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EXHIBIT R1 B TRUE COPY OF THE ORDER DATED 16/12/2011 PASSED BY THE CHIEF JUDICIAL MAGISTRATE COURT IN CMP NO. 6343/2011. EXHIBIT R1 C TRUE COPY OF THE LETTER DATED 21/05/2012 ISSUED BY THE RESPONDENT BANK TO THE THALUK SURVEYOR. EXHIBIT R1 D TRUE COPY OF THE ORDER DATED 03/07/2012 OF THE CHIEF JUDICIAL MAGISTRATE COURT, KOLLAM. EXHIBIT R1 E TRUE COPY OF THE INTERIM REPORT DATED 16/12/2011 FILED BY THE ADVOCATE COMMISSIONER. EXHIBIT R1 F TRUE COPY OF THE PROCEEDINGS DATED 16/12/2011 OF THE CHIEF JUDICIAL MAGISTRATE COURT, KOLLAM. EXHIBIT R1 G TRUE COPY OF THE PROCEEDINGS DATED 03/07/2012 OF THE CHIEF JUDICIAL MAGISTRATE COURT, KOLLAM. EXHIBIT R1 H TRUE COPY OF THE ORDER DATED 21/11/2011 IN IA 2576/2011 IN UNREGISTERED SA BY THE DEBTS RECOVERY TRIBUNAL IN SA. EXHIBIT R1 I TRUE COPY OF THE ORDER OF THE CHIEF JUDICIAL COURT IN CMP 10088/2011 IN CMP NO.6343/2011. EXHIBIT R1 J COPY OF THE APPLICATION CMP NO.3566/2016 FILED UNDER SECTION 14 OF THE SECURITISATION ACT. EXHIBIT R1 K COPY OF THE ORDER DATED 09/06/2016 IN CMP NO.3566/2016. EXHIBIT R1 L COPY OF THE NOTICE DATED 19/07/2016 ISSUED BY THE THE ADVOCATE COMMISSIONER. EXHIBIT R1 M COPY OF THE INTERIM REPORT FILED BY THE ADVOCATE COMMISSIONER. EXHIBIT R1 N COPY OF THE IMPLEADING APPLICATION FILED BY THE RESPONDENT BANK BEFORE THE CHIEF JUDICIAL MAGISTRATE COURT, KOLLAM. EXHIBIT R4(B) THE TRUE COPY OF THE TAX RECEIPT OF THE NAME OF THE SAID SUKUMARAN OF THE YEAR

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WP(C).No.19633 OF 2011

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1987.

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EXHIBIT R4(C) THE TRUE COPY OF THE NOTICE ISSUED BY THE ADVOCATE COMMISSIONER, SHAJAHAN APPOINTED IN CMP 6343/2011 BEFORE THE CJM KOLLAM.

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EXHIBIT R4(D) THE TRUE COPY OF SECTION 14(1) PETITION WHICH WAS FILED BY THE INDIAN BANK BEFORE CJM, KOLLAM IN CMP 6343/2011

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EXHIBIT R4(E) THE TRUE COPY OF THE ORDER OF DRT IN IA APPLICATION 2576/2011. EXHIBIT R4(F) INTERIM REPORT FILED BY ADVOCATE COMMISSIONER SAJINA DATED 09/08/2012 IN CMP 6343/2012 BEFORE CJM, KOLLAM.

K.R. Usharee v. Indian Bank

Case brief

What is this about?

What did the court decide?

K.R. Usharee v. Indian Bank

Case brief

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