Disposed

Nijil Raj v. Calicut City Service Co-Operative Bank Limited

Kerala HC12 Mar 2019WP(C)/5634/2019

Case brief

AI extract

What is this about?

The High Court of Kerala, in Writ Petition (C) No. 5634 of 2019, addressed a challenge to a sale notice issued by the Special Sale Officer. Declaring the matter not suitable for a conclusive decision on merits at this stage, the Court granted liberty to the petitioner to file objections before the Special Sale Officer and deferred further action.

What did the court decide?

Liberty to file objections before the Special Sale Officer within one week; further action on the sale notice deferred until such objections are decided.

Nijil Raj Vs Calicut City Service Co-Operative Bank Limited — Property and Title | 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 DEVAN RAMACHANDRAN

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TUESDAY ,THE 12TH DAY OF MARCH 2019 / 21ST PHALGUNA, 1940

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WP(C).No. 5634 of 2019

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PETITIONER/S:

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NIJIL RAJ AGED 34 YEARS S/O RAJAN P.P., LITTLE NEST, SANJO GARDENS, KALOOR ROAD, CALICUT-673007. BY ADVS. SRI.C.S.MANU SMT.RAJASREE R NAIR SRI.C.A.ANUPAMAN SRI.C.Y.VIJAY KUMAR SRI.S.K.PREMRAJ SRI.T.B.SIVAPRASAD

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RESPONDENT/S:

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1 CALICUT CITY SERVICE CO-OPERATIVE BANK LIMITED NO.D-2777, KOZHIKODE-673001, REPRESENTED BY ITS GENERAL MANAGER.

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2 THE ASSISTANT REGISTRAR OF CO-OPERATIVE SOCIETIES ARBITRATOR, CALICUT CITY CO-OPERATIVE BANK LIMITED NO.D-2777, OFFICE OF THE JOINT REGISTRAR OF COOPERATIVE SOCIETIES (GENERAL), KOZHIKODE-673001.

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3 THE SPECIAL SALE OFFICER CALICUT CITY SERVICE CO-OPERATIVE BANK LIMITED NO.D2777 KOZHIKODE, PIN-673001

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4 RAJAN P.P. LITTLE NEST, SANJO GARDENS, KALOOR ROAD, KOZHIKODE673007.

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BY ADVS. SMT.ANITHA RAVINDRAN SRI.B.S.SWATHY KUMAR

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SMT. C.S.SHEEJA-SR.GP

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 12.03.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C).No. 5634 of 2019 2

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JUDGMENT

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The petitioner says that the Sale officer attached to the 1^st respondent Society is illegally proceeding against him under Ext.P1 notice, though there is no award or decree from a competent Forum or Court obtained by the said Society against him for recovery of any amounts.

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The petitioner says that, as is clear from Ext.P3 Award issued by the Assistant Registrar, Calicut City Co-Operative Bank Ltd, only the 4^th respondent herein has been shown as a defendant and, therefore, that any action based on that Award can be proceeded against that individual alone and no one else. The petitioner says that, however, the 3^rd respondent, Special Sale Officer, is now proceeding against his property through Ext.P1 notice and therefore, that the same be set aside as being illegal and unconstitutional.

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Sri.B.S.Swathi Kumar, the learned Standing Counsel appearing for the 1^st respondent Society, submits that the petitioner has approached this Court suppressing very vital information and says that the 4^th respondent is, in fact, the petitioner's father. He adds that not merely is the 4^th respondent the petitioner's father but that concededly,

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WP(C).No. 5634 of 2019 3

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he is also his Power of Attorney holder, who was authorised through the said Power of Attorney to create mortgage of the property, shown in Ext.P1, as security for the loan availed of by the 4^th respondent. The learned counsel submits that it is in such circumstances that Ext.P3 Award was issued against the 4^th respondent creating a charge over the property shown therein, the mortgage over which was created by him on the strength of the Power of Attorney issued by the petitioner. He, therefore, emphatically submits that merely because the petitioner's name has not been shown in Ext.P3 Award he cannot resile from the obligations cast upon him by his own conduct of authorising his father to create the mortgage of his property for the purpose of security of a loan taken by him. The Learned Standing Counsel then says that, in fact, in an Adalath, held by the Special Sale Officer, the petitioner had given an undertaking that he will pay off the entire liability under the Award on or before 15.02.2019, as is evident from Ext.R1(d); and that it is after giving the said undertaking before the said Officer that he has approached this court through this writ petition.

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Even when I hear Sri.B.S.Swathi Kumar as afore, it is ineluctable that the petitioner's specific allegation is that no recovery against him is possible based on Ext.P3 Award, since he has not been

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WP(C).No. 5634 of 2019 4

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arrayed as a defendant therein. This essentially is a question of law juxtaposed by factual circumstances and materials; and therefore, it would not be possible for this Court, while acting under Article 226 of the Constitution of India, to affirmatively state upon it or decide conclusively; and consequently, if the petitioner has any grievance against the manner in which Ext.P3 Award is now being executed through Ext.P1 notice, his remedy is to approach the 3^rd respondentSpecial Sale Officer, and to file his objections against the said notice so that the said Authority can decide upon it in terms of law.

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When I made my mind clear as afore in the Bar, Sri.C.S.Manu, the learned counsel appearing for the petitioner, prayed that his client be given the liberty of approaching the 3^rd respondent, the Special Sale Officer, with all his contentions raised in this writ petition, in the form of objections, which, he will file within a period of one week from the date of receipt of a copy of this judgment, so that the said Authority can decide upon it, after affording an opportunity of being heard to his client, within a period to be fixed by this Court. Sri.B.S.Swathi Kumar the learned Standing Counsel for the 1^st respondent also affirms to this course of action and prays that this writ petition be ordered on such terms.

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WP(C).No. 5634 of 2019 5

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In the afore circumstances, I order this writ petition and grant liberty to the petitioner to file his objections to Ext.P1 notice before the 3^rd respondent- the Special Sale Officer, within a period of one week from the date of receipt of a copy of this judgment; in which event, the said Authority will decide upon the same, after affording an opportunity of being heard to the petitioner and the 4^th respondent, as expeditiously as is possible but not later than one month from the date of receipt of the objections from the petitioner and communicate the resultant order to the parties without any delay thereafter.

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Needless to say, until such time as the afore exercise is completed, all further action pursuant to Ext.P2 against the petitioner, will stand deferred.

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Sd/- DEVAN RAMACHANDRAN JUDGE

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WP(C).No. 5634 of 2019 6

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APPENDIX

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PETITIONER'S/S EXHIBITS:

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EXHIBIT P1 TRUE COPY OF THE SALE NOTICE DATED 16.11.2018 ISSUED BY THE SPECIAL SALES OFFICER, CALICUT CITY SERVICE CO-OPERATIVE BANK LIMITED NO.D-2777, OFFICE OF THE ASSISTANT REGISTRAR OF CO-OPERATIVE SOCIETIES (GENERAL), CALICUT-673001 EXHIBIT P2 TRUE COPY OF DOCUMENT NO.329 OF 2012 OF SRO CHALAPURAM EXHIBIT P2 A TRUE COPY OF THE BASIC TAX RECEIPT FOR HAVING PAID THE BASIC TAX OF THE SAID PROPERTY ISSUED BY THE VILLAGE OFFICER, VALANGAD VILLAGE DATED 12.4.2012 EXHIBIT P3 TRUE COPY AWARD DATED 31.7.2017 IN ARC NO.1879 OF 2016 PASSED BY THE 2ND RESPONDENT UNDER SECTION 707 OF THE KERALA CO-OPERATIVE SOCIETIES ACT 1969

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RESPONDENT'S/S EXHIBITS:

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EXHIBIT R1 A TRUE COPY OF THE POWER OF ATTORNEY DATED 12.3.2014 EXECUTED BY THE PETITIONER EXHIBIT R1 B TRUE COPY OF THE APPLICATION SUBMITTED BY THE 4TH RESPONDENT TO THE 1ST RESPONDENT DATED 3.5. 2014 EXHIBIT R1 C TRUE COPY OF THE GEHAN EXECUTED BY THE 4TH RESPONDENT DATED 6.6.2014 EXHIBIT R1 D TRUE COPY OF THE UNDERTAKING DATED 25.1.2019 SIGNED BY THE PETITIONER

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//TRUE COPY// Sd/PA TO JUDGE

Nijil Raj v. Calicut City Service Co-Operative Bank Limited

Case brief

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Nijil Raj v. Calicut City Service Co-Operative Bank Limited

Case brief

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