Allowed

The State Bank of India v. Niyas

Kerala HC22 Oct 2021RFA/77/2021

Case brief

AI extract

What is this about?

This judgment addresses an appeal against a decree declaring a sale deed void and ordering reconveyance. The High Court set aside the lower court's decree for mechanical passing without speaking order and for ignoring the legal impossibility of ordering reconveyance for a sham document.

What did the court decide?

Impugned decree and judgment of the trial court set aside; suit dismissed with cost of appeal to appellant.

The State Bank of India Vs Niyas — Contract and Commercial Disputes | Kerala HC (2021)

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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 P.SOMARAJAN

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FRIDAY, THE 22^ND DAY OF OCTOBER 2021 / 30TH ASWINA, 1943

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RFA NO. 77 OF 2021

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AGAINST THE JUDGMENT & DECREE DATED 16.03.2018 IN OS 198/2016 OF PRINCIPAL SUB COURT, ERNAKULAM

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APPELLANT/3RD PARTY:

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THE STATE BANK OF INDIA ASSET RECOVERY MANAGEMENT BRANCH, R.S.BUILDING, M.G.ROAD, ERNAKULAM, PIN - 682 011, REPRESENTED BY THE CHIEF MANAGER.

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BY ADV JAWAHAR JOSE

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RESPONDENTS/PLAINTIFF & DEFENDANT:

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1 NIYAS AGED 44 YEARS

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S/O.ALIKUTTY, RESIDING AT PEECHINGAPARAMBIL HOUSE, VATTEKUNNAM KARA, EDAPPALLY NORTH (P.O.), THRIKKAKARA NORTH VILLAGE, ERNAKULAM DISTRICT, PIN - 682 024.

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2 ANWAR

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AGED 48 YEARS S/O.IBRAHIM, RESIDING AT PEECHINGAPARAMBIL HOUSE, VATTEKUNNAM KARA, EDAPPALLY NORTH (P.O.), THRIKKAKARA NORTH VILLAGE, ERNAKULAM DISTRICT, PIN - 682 024.

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THIS REGULAR FIRST APPEAL HAVING COME UP FOR HEARING ON 22.10.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

RFA NO. 77 OF 2021

JUDGMENT

It is so unfortunate that a decree was passed by the learned Sub Judge in terms of the plaint without a speaking judgment (speaking order). Paragraph Nos.3 to 6 of the judgment are extracted below for reference:

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‘’3. Defendant is ex-parte.

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4. Proof affidavit was filed by the plaintiff and Exts.A1 series and A2 were marked.

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5. The unrebutted evidence adduced by the plaintiff proves that Ext.A2 was executed as alleged in the plaint. Ext.A1 series prove the repayment of the amount. Plaint claim stands proved. So plaintiff is entitled for a decree as prayed for.

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6. In the result, suit is decreed as follows:-

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1. Ext.A2 sale deed No.53/2012 of SRO, Edappally is declared to be

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RFA NO. 77 OF 2021

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a sham and void document.

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2. Defendant is directed to execute a deed of re-conveyance in the nature of a sale deed in respect of the plaint schedule property in favour of the plaintiff within one month from this date.

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3 Plaintiff is allowed to recover possession of the plaint schedule property from the defendant.

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4. After effecting recovery of possession, defendant is restrained from trespassing into the plaint schedule property.

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5. Copy of the decree shall be sent to the SRO, Edappally,.

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6. No cost.”

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The court below passed a decree mechanically without ascertaining the

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collusion between the parties and the cause of

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action for the suit. It seems to be so strange that after declaring Ext.A2 sale deed as sham

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RFA NO. 77 OF 2021

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and void, directions were issued to the defendant to execute a deed of reconveyance. When the document is declared as sham and void, it will not have any legal validity or binding force. Necessarily, there is no need for executing a deed of re-conveyance. Further, the plaintiff was allowed to recover possession of the plaint schedule property from the defendant. It would show diversion of possession in furtherance of the sale conducted and would go against the very concept of void document. When possession was handed over by executing a registered deed of conveyance,the possession thus obtained will have all its legal consequences including the consequences arising out of the sale. It is a factor to be adjudicated while ascertaining whether the document is void or a sham document. The decree and judgment of the court below thus suffers material infirmities. The

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RFA NO. 77 OF 2021

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suit property was purchased with a loan facility granted by the State Bank of India and SARFAESI proceedings were initiated for recovery of the loan amount. The bank has also obtained a decree against the defendant charging the said liability over the property from the Debt Recovery Tribunal against the defendant. Annexure A6 is the judgment in a writ petition for regularization of the loan in the year 2014. It is thereafter the present suit was filed through the brother-inlaw of the defendant to declare the abovesaid sale deed as a sham document. It is a registered sale deed of the year 2012 and the suit was filed after the expiry of three years. It is not discernible from the impugned judgment as to the reason upon which the document was found to be sham. On the other hand, the facts involved would clearly show the collusion between the plaintiff and the

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RFA NO. 77 OF 2021

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defendant and the trial court without adhering to the legal requirement passed a decree ignoring all settled legal principles. Hence, the decree and judgment of the trial court are set aside. The suit is dismissed with cost of appeal to the appellant from the respondents.

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The appeal is allowed accordingly.

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The Registry is directed to forward a copy of this judgment to the Directorate of Training attached to the High Court for future guidance, while imparting training.

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Sd/-

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P.SOMARAJAN JUDGE

SPV

RFA NO. 77 OF 2021

APPENDIX OF RFA 77/2021

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PETITIONER’S ANNEXURE

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ANNEXURE I THE COPY OF LETTER DATED 25/10/2011 ISSUED BY THE ASSISTANT MANAGER, HOUSING FINANCE BRANCH, SYNDICATE BANK, ERNAKULAM.

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ANNEXURE II STATEMENT OF ACCOUNT OF THE ERSTWHILE STATE BANK OF TRAVANCORE BEARING NUMBER 67066959429 WITH THE CERTIFICATE UNDER THE BANKERS BOOK EVIDENCE ACT.

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ANNEXURE III THE TRUE COPY OF LETTER DATED 28/12/2011 ISSUED BY THE ERSTWHILE STATE BANK OF TRAVANCORE TO THE BRANCH MANAGER, HOUSING FINANCE BRANCH, SYNDICATE BANK, ERNAKULAM.

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ANNEXURE IV THE REGISTERED DOCUMENT DATED 19/4/2006 IN FAVOUR OF THE 1ST RESPONDENT REGISTERED AT THE SUB REGISTRAR OFFICE, EDAPALLY.

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ANNEXURE V THE FINAL ORDER DATED 28/11/2016 IN O.A.NO.289/2016 OF THE DEBTS RECOVERY TRIBUNAL-I, ERNAKULAM.

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ANNEXURE VI THE CERTIFIED COPY OF JUDGMENT DATED 27/3/2014 IN WP(C) NO.8635/2014 OF THIS HON'BLE COURT.

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ANNEXURE VII TRUE COPY OF ORDER DATED 15.10.2019 IN R.P.NO.125/2017 IN W.P(C).NO.8635/2014 OF THIS HON’BLE COURT.

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RESPONDENTS’ ANNEXURE: NIL

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//TRUE COPY//

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PA TO JUDGE

The State Bank of India v. Niyas

Case brief

What is this about?

What did the court decide?

The State Bank of India v. Niyas

Case brief

What is this about?

What did the court decide?

What the court decided

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