Dismissed

Mary Premila Gomez v. Kerala State Financial Enterprises

Kerala HC17 Mar 2021WP(C)/2969/2021

Case brief

AI extract

What is this about?

High Court dismissed a writ petition where the petitioner, claiming to be a co-owner whose property was mortgaged for the husband's prized chiti subscription and allegedly via a forged POA, sought exclusion from recovery. The court held the property was liable as security and advised civil remedies for grievances regarding the POA. Notice provisions addressed.

What did the court decide?

The writ petition seeking exclusion of the petitioner's share from recovery was dismissed. The court directed that notice procedures be followed if the petitioner has a separate address.

Mary Premila Gomez Vs Kerala State Financial… — 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 SMT. JUSTICE P.V.ASHA

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WEDNESDAY, THE 17TH DAY OF MARCH 2021 / 26TH PHALGUNA, 1942

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WP(C).No.2969 OF 2021(U)

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PETITIONER:

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MARY PREMILA GOMEZ AGED 56 YEARS W/O RICHENS GOMEZ, HAVING PERMANENT RESIDENCE AT SHARIKA, TC 51/2499, NJALIKONAM, KUNNAPUZHA, ARAMADA P.O.THIRUVANANTHAPURAM-695 032

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BY ADV. SRI.SIVARAM

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RESPONDENTS:

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1 KERALA STATE FINANCIAL ENTERPRISES REPRESENTED BY MANAGER, CHALAI BRANCH, THIRUVANANTHPAURAM-695 036.

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2 KERALA STATE FINANCIAL ENTERPRISES, HAVING REGISTERED OFFICE AND HEAD OFFICE AT BHADRATHA, MUSEUM ROAD P.B.NO. 510, THRISSUR-680 020, REPRESENTED BY ITS MANAGING DIRECTOR.

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3 RICHENS GOMEZ, AGED 65 YEARS HAVING PERMANENT RESIDENCE AT TC 27/126(1), MOOLAVILAKOM, MRA-9, THIRUVANANTHAPURAM-695 035.

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R1-2 BY SHRI.SALIL NARAYANAN K.A., SC, KSFE LTD.

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 17.03.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C).No.2969 OF 2021(U)

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JUDGMENT

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Dated this the 17^th day of March 2021

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The petitioner claims that she along with

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her husband, who is the 3^rd respondent, are co-

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owners of the property covered by sale deed No.3514/2004 of SRO, Thiruvananthapuram. It is

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stated that the petitioner and the 3^rd respondent are in loggerheads and are living separately. According to the petitioner, the husband prepared a power of attorney forging her signature and the property in which she is having equal share as that of her husband has been given as collateral security towards the

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payment of prized chitty amount. The 3^rd respondent who had subscribed the chitty has laibility to the tune of Rs.25,00,000/- towards

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the KSFE. In this writ petition, the petitioner claims that KSFE is going to

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initiate proceedings for recovery against her

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WP(C).No.2969 OF 2021(U)

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share of property. The relief sought in this writ petition are as follows:

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“(i) Issue a writ of mandamus or other appropriate writ, order of direction directing that the share of the Petitioner in the property covered by Exhibit P-1 Regd Sale Deed No.3514/2004 of SRO Thiruvananthapuram be absolved / excluded from the liability accrued as a part of the joining/subscription of the chitties by the 3^rd respondent before the 1^st respondent.

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(ii) Issue a writ of mandamus or other appropriate writ, order of direction directing that the recovery by the 1^st Respondent, shall be limited to the fractional share of the 3^rd Respondent alone. (iii) Issue a writ of mandamus or other appropriate writ, order of direction, directing that in the event the property is to be proceeded against, proceedings acan be initiated only after issuing prior notice to the Petitioner.

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(iv) Issue a writ of mandamus or other appropriate writ, order of direction, directing that in the event the property is to be proceeded against, it can only be after excluding the share of the Petitioner. (v) Issue such appropriate, interim, incidental or other orders that may be deemed just and necessary in the facts and circumstances of the case .”

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The respondents 1 and 2 have filed a

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statement. It is stated that the 3^rd respondent

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WP(C).No.2969 OF 2021(U)

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had subscribed to a number of chitties of the

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respondent, several of which are prized. The petitioner has stood as the guarantor for all these chitties, voluntarily offering her property as security and permitted the 3^rd respondent to draw the prized money. The petitioner herself has stood as surety for all the facilities enjoyed by the 3^rd respondent and the 3^rd respondent has offered the property in which petitioner is having equal share, as security, in order to release the prize money to the 3^rd respondent. It is stated that the property belonging to the petitioner and the 3^rd respondent is mortgaged on the strength of Ext.P5 power of attorney; on the basis of such mortgage, the respondent has released the prize money to the 3^rd respondent. It is stated that the respondent had confirmed the genuineness of the power of attorney, telephonically with the petitioner.

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Heard the learned counsel for the

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WP(C).No.2969 OF 2021(U)

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petitioner who relied on the judgment of this

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Court in Shakeela C.K. v. Tahsildar , Thamarassery and others [ 2019 (2) KHC 410] in

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support of the contention that the property

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within the share of the petitioner shall not be proceeded with, for realising the amount due from the 3^rd respondent.

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From the documents available on record

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it is seen that the petitioner is a guarantor and there is a power of attorney also. As at present the property in which the petitioner

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claims to have a share is mortgaged and it is furnished as security for the amount already drawn towards prized chitties. Therefore,

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naturally the petitioner as well as her

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property also would be liable to be proceeded against, when the monthly instalments are in

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default. In case the petitioner has got any

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grievance as against the 3^rd respondent or over the execution of the power of attorney, it is

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for the petitioner to approach the competent

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WP(C).No.2969 OF 2021(U)

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court for appropriate reliefs and not to approach this Court under Article 226 of the Constitution of India.

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In case the petitioner is to be given

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notice in any separate address, the petitioner would be free to request for the same which the respondents shall act upon, on its receipt, as and when required.

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The writ petition is accordingly dismissed.

Sd/-

P.V.ASHA JUDGE

WP(C).No.2969 OF 2021(U)

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APPENDIX

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PETITIONER'S EXHIBITS:

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EXHIBIT P1	TRUE	COPY OF SALE DEED NO 3514/2004
	OF THIRU	SUB REGISTER OFFICE VANANTHAPURAM
EXHIBIT P2	TRUE	COPY OF COMPLAINT PREFERRED BY
	PETIT	IONER BEFORE JUDICIAL FIRST
	CLASS THIRU	MAGISTRATE COURT-111, VANANTHAPURAM
EXHIBIT P3	TRUE DATED 3RD R	COPY OF MEDIATION AGREEMENT 27.6.15 BETWEEN PETITIONER AND ESPONDENT
EXHIBIT P4	TRUE PASSE MAGIS THIRU	COPY OF ORDER DATED 6.8.2015 D BY JUDICIAL FIRST CLASS TRATE COURT - III, VANANTHAPURAM
EXHIBIT P5	TRUE 14.7.	COPY OF POWER OF ATTORNEY DATED 2017
EXHIBIT P6	TRUE 30.7. STATI	COPY FIR NO :1583/2019 DATED 2019 OF CANTONMENT POLICE ON THIRUVANANTHAPURAM
EXHIBIT P7	TRUE ISSUE	COPY OF A NOTICE DATED 13.1.2021 BY PETITIONER TO 1ST RESPONDENT
EXHIBIT P8	TRUE ISSUE	COPY OF REPLY DATED 18.1.2021 D BY 1ST RESPONDENT

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RESPONDENTS EXHIBITS: NIL

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//TRUE COPY//

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PA TO JUDGE

Mary Premila Gomez v. Kerala State Financial Enterprises

Case brief

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Mary Premila Gomez v. Kerala State Financial Enterprises

Case brief

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