Dismissed

Sabu. M.C v. State of Kerala

Kerala HC2 Mar 2021WP(C)/5380/2021

Case brief

AI extract

What is this about?

Three writ petitions filed by a petitioner challenging the sale of properties attached in a suit. The petitioner feared losing remedy if properties sold. The Court was satisfied that the executing court clarified the Bank would get first charge from mortgage proceeds, allowing excess to petitioner, rendering Writ premature.

What did the court decide?

Prayer to direct the 2nd respondent to take a decision safeguarding petitioner's interest before conducting sale was dismissed.

Sabu. M.C Vs State of Kerala — Execution and Attachment | 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 SUNIL THOMAS

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TUESDAY, THE 02ND DAY OF MARCH 2021 / 11TH PHALGUNA, 1942

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WP(C).No.5380 OF 2021(V)

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PETITIONER:

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SABU M.C., AGED 48 YEARS, S/O LATE M.P.CHACKOCHAN, MANAKKATT HOUSE, ONAKKOOR P.O., ONAKKOOR VILLAGE, MUVATTUPUZHA TALUK, ERNAKULAM DISTRICT.

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BY ADVS. SRI.VARGHESE C.KURIAKOSE SRI.P.J.JOSE SHRI.SUSANTH SHAJI

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RESPONDENTS:

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1 STATE OF KERALA, REP. BY SECRETARY, DEPARTMENT OF CO-OPERATION, SECRETARIAT, TRIVANDRUM-695 001.

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2 THE SPECIAL SALE OFFICER, ERNAKULAM DISTRICT CO-OP BANK, ERNAKULAM, (O/O. THE ASST.REGISTRAR, KAKKANADU, KOCHI-682 030).

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3 THE KERALA STATE CO-OP. BANK (KERALA BANK), (FORMERLY, THE DISTRICT CO-OP. BANK, ERNAKULAM), KAKKANADU, KOCHI-682030, REP. BY ITS GENERAL MANAGER.

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4 SHRI.P.T.JAISON, S/O PULICKAL THOMAS, PAZHOOR KARA, PIRAVOM VILLAGE, MUVATTUPUZHA TALUK, ERNAKULAM-686 664.

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5 SHRI. T.P.JAMES, AGED 50 YEARS, S/O.THOMAS, PULICKAL HOUSE, H.NO.IX/96, PIRAVOM GRAMA PANCHAYAT, PAZHOOR KARA,

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WP(C).5380/2021, WP(C).5323/2021, WP(C).5431/2021

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PIRAVOM VILLAGE, PIRAVOM P.O, MUVATTUPUZHA TALUK, ERNAKULAM DISTRICT-686 664.

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6 SHRI. P.J.CHACKO, S/O.JOHN, PANDARAKUDIYIL (CHERUKATTUPARAMBIL), PIRAVOM KARA, PIRAVOM VILLAGE, MUVATTUPUZHA TALUK, ERNAKULAM DISTRICT-686 664.

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R1 BY SRI. K.P. HARISH, SR.GP

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R2-3 BY ADV. SRI.N.RAGHURAJ, SC

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 02.03.2021, ALONG WITH WP(C).5323/2021(M), WP(C).5431/2021(D), THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C).5380/2021, WP(C).5323/2021, WP(C).5431/2021 3

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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 SUNIL THOMAS

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TUESDAY, THE 02ND DAY OF MARCH 2021 / 11TH PHALGUNA, 1942

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WP(C).No.5323 OF 2021(M)

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PETITIONER:

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SABU M.C., AGED 48 YEARS, S/O. LATE M.P. CHACKOCHAN, MANAKKATT HOUSE, ONAKKOOR P.O., ONAKKOOR VILLAGE, MUVATTUPUZHA TALUK, ERNAKULAM DISTRICT.

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BY ADV. SRI.VARGHESE C.KURIAKOSE

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RESPONDENTS:

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1 STATE OF KERALA, REPRESENTED BY SECRETARY, DEPARTMENT OF CO-OPERATION, SECRETARIAT, THIRUVANANTHAPURAM-695 001.

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2 THE SPECIAL SALE OFFICER, ERNAKULAM DISTRICT CO-OP. BANK, ERNAKULAM, (O/O. THE ASSISTANT REGISTRAR, KAKKANAD, KOCHI-682 030).

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3 THE KERALA STATE CO-OP. BANK,(KERALA BANK), (FORMERLY, THE DISTRICT CO.OP. BANK, ERNAKULAM), KAKKANAD, KOCHI-682030, REPRESENTED BY ITS GENERAL MANAGER.

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4 SMT. JESSY ELIAS, W/O. ELIAS, PULIYAKULATHIL, PAZHOOR EAST KARA, PIRAVOM VILLAGE, PIRAVOM P.O., MUVATTUPUZHA TALUK, ERNAKULAM DISTRICT-686 664.

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5 SILVY MATHEW, W/O. JAMES, PULIKKAL HOUSE, PAZHOOR KARA, PIRAVOM VILLAGE,

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WP(C).5380/2021, WP(C).5323/2021, WP(C).5431/2021

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PIRAVOM P.O., MUVATTUPUZHA TALUK, ERNAKULAM DISTRICT-686 664.

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6 ELAMMA VARGHESE, KUZHIPLIYEDATH HOUSE, KAKKAD KARA, MUVATTUPUZHA TALUK, ERNAKULAM DISTRICT-686 664.

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7 SRI. T.P. JAMES, AGED 50, S/O. THOMAS, PULICKAL HOUSE, H. NO.IX/96, PIRAVOM GRAMA PANCHAYAT, PAZHOOR KARA, PIRAVOM VILLAGE, PIRAVOM P.O., MUVATTUPUZHA TALUK, ERNAKULAM DISTRICT-686 664.

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R1 BY SRI. K.P. HARISH, SR.GP

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R2-3 BY ADV. SRI.N.RAGHURAJ, SC

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 02.03.2021, ALONG WITH WP(C).5380/2021(V), WP(C).5431/2021(D), THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C).5380/2021, WP(C).5323/2021, WP(C).5431/2021 5

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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 SUNIL THOMAS

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TUESDAY, THE 02ND DAY OF MARCH 2021 / 11TH PHALGUNA, 1942

¶50

WP(C).No.5431 OF 2021(D)

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PETITIONER:

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SABU M.C., AGED 48 YEARS, S/O. LATE M.P. CHACKOCHAN, MANAKKATT HOUSE, ONAKKOOR P.O, ONAKKOOR VILLAGE, MUVATTUPUZHA TALUK, ERNAKULAM DISTRICT.

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BY ADV. SRI.VARGHESE C.KURIAKOSE

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RESPONDENTS:

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1 STATE OF KERALA, REP. BY SECRETARY, DEPARTMENT OF CO-OPERATION, SECRETARIAT, TRIVANDRUM-695 001. 2 THE SPECIAL SALE OFFICER, ERNAKULAM DISTRICT CO-OP. BANK, ERNAKULAM, (O/O THE ASST. REGISTRAR, KAKKANADU, KOCHI-682 030). 3 THE KERALA STATE CO-OP. BANK,(KERALA BANK), (FORMERLY, THE DISTRICT CO-OP. BANK, ERNAKULAM), KAKKANADU, KOCHI-682 030, REP.BY ITS GENERAL MANAGER. 4 SHRI. P.J.CHACKO, S/O. JOHN, PANDARAKUDIYIL (CHERUKATTUPARAMBIL), PIRAVOMKARA, PIRAVOM VILLAGE, MUVATTUPUZHA TALUK, ERNAKULAM -686 664. 5 SHRI. T.P. JAMES, AGED 50, S/O. THOMAS, PULICKAL HOUSE, H.NO. IX/96,

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WP(C).5380/2021, WP(C).5323/2021, WP(C).5431/2021

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PIRAVOM GRAMA PANCHAYAT, PAZHOOR KARA, PIRAVOM VILLAGE, PIRAVOM P.O, MUVATTUPUZHA TALUK, ERNAKULAM DISTRICT-686 664.

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6 SHRI. SANIL BHASKARA MENON, S/O. BHASKARA MENON, THATTARASSERIL HOUSE, KAKKOOR KARA, THIRUMARADI VILLAGE, MUVATTUPUZHA TALUK, ERNAKULAM DISTRICT-686 661.

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7 THE JOINT REGISTRAR (GENERAL), CO-OP. SOCIETIES, CIVIL STATION, KAKKANADU, KOCHI-682 030.

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R1 BY SRI. K.P. HARISH, SR.GP

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R2-3 BY ADV. SRI.N.RAGHURAJ, SC

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 02.03.2021, ALONG WITH WP(C).5323/2021(M), WP(C).5380/2021(V), THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C).5380/2021, WP(C).5323/2021, WP(C).5431/2021 7

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JUDGMENT

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[ WP(C).5380/2021, WP(C).5323/2021, WP(C).5431/2021 ] Dated this the 2nd day of March 2021

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The Writ Petitioner who is common petitioner in

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all the Writ Petitions, obtained a decree for money against one T.P.James. The properties of the above person were attached in the suit. The decree was based on a compromise arrived at in the process of mediation. It is seen that, the respondent Co-operative Bank had a mortgage transaction with the same T.P.James and in an arbitration proceeding, decree was granted. The properties are brought for sale, which is proposed to be held on 03.03.2021. The grievance of the petitioner is that, if the properties are brought for sale, they being the only available properties, would be sold in execution and the petitioner will be without any remedy. The prayer sought in the Writ Petitions was to direct the 2^nd respondent to take a decision by the 3^rd respondent after safeguarding the interest of the petitioner before conducting sale.

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The learned standing counsel for the

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WP(C).5380/2021, WP(C).5323/2021, WP(C).5431/2021 8

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respondent Bank, who vehemently opposed the application, invited my attention to a claim petition filed in OS No.283/2014, by the erstwhile Ernakulam District Cooperative Bank which is the predecessor of the respondent Bank. The writ petitioner herein was the respondent. Second respondent therein, T.P.James, remained absent. In the claim petition, the anxiety expressed by the Bank was that, the attachment order passed by the Court in I.A.No.5133/2014, over the properties mortgaged in favour of Bank, will stand in the way of the property of T.P.James being brought for sale. The court below by a detailed order dismissed the claim petition, however making it clear that, the anxiety expressed by the Bank that they cannot sell the property in public auction since, there existed an order of attachment was not correct. The execution court held that the Bank will get first charge since mortgage was prior to attachment. It gives the Bank a guard of security whereby loan was secured. It was indicated that, in the sale proclamation, the order of attachment passed by the court and the suit liability can be mentioned. So, the

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WP(C).5380/2021, WP(C).5323/2021, WP(C).5431/2021 9

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prospective auction purchaser will get to know that, there was another encumbrance and property can be sold subject to the attachment. On this reasoning, it was held that after releasing the debt due to the Bank, if there was excess sale proceeds, the writ petitioner has the right to get the excess amount.

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I am satisfied that, this order of the court below exactly covers the point in issue. This being the correct legal proposition clarified by the court below, which is binding on both parties, I do not find any scope for a further clarification. Now there is no scope for any interference at this stage. The Bank has a specific allegation that the original suit which resulted in a compromised decree, which the petitioner is relying, was a collusive suit. The petitioner has approached this Court, suppressing material facts.

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These writ petitions are absolutely without any merits and are accordingly dismissed .

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Sd/-

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SUNIL THOMAS JUDGE

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RMV/02/03/2021

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WP(C).5380/2021, WP(C).5323/2021, WP(C).5431/2021 10

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APPENDIX OF WP(C) 5380/2021

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PETITIONER'S EXHIBITS:

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EXHIBIT P1 TRUE PHOTOSTAT COPY OF THE DECREE IN O.S.NO.283/2014 ON THE FILES OF SUB COURT, ERNAKULAM DATED 22.09.2015. EXHIBIT P2 TRUE PHOTOSTAT COPY OF THE SETTLEMENT TERMS WHICH FORMS PART OF THE MEDIATION ALONGWITH THE REPORT OF THE MEDIATOR DATED 11.09.2015. EXHIBIT P3 TRUE PHOTOSTAT COPY OF THE SALE NOTIFICATION FIXING DATE OF SALE AS ON 03.03.2021 DATED 28.01.2021. EXHIBIT P4 TRUE PHOTOSTAT COPY OF THE EXECUTION PETITION FILED BEFORE SUB COURT, MUVATTUPUZHA AS E.P.NO.29/2017 DATED 07.08.2017. EXHIBIT P5 TRUE PHOTOSTAT COPY OF THE CLAIM PETITION DATED 17.02.2021 SUBMITTED BEFORE THE 2ND RESPONDENT.

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RESPONDENT'S EXHIBITS:NIL

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RMV/02/03 //TRUE COPY// PA TO JUDGE

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WP(C).5380/2021, WP(C).5323/2021, WP(C).5431/2021 11

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APPENDIX OF WP(C) 5323/2021

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PETITIONER'S EXHIBITS:

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EXHIBIT P1 TRUE PHOTOSTAT COPY OF THE DECREE IN OS NO.283/2014 ON THE FILES OF SUB COURT, ERNAKULAM DATED 22/09/2015. EXHIBIT P2 TRUE PHOTOSTAT COPY OF THE SETTLEMENT TERMS WHICH FORMS PART OF THE MEDIATION ALONGWITH THE REPORT OF THE MEDIATOR DATED 11/09/2015. EXHIBIT P3 TRUE PHOTOSTAT COPY OF THE SALE NOTIFICATION FIXING DATE OF SALE AS ON 03/03/2021 DATED 28/01/2021. EXHIBIT P4 TRUE PHOTOSTAT COPY OF THE EXECUTION PETITION FILED BEFORE SUB COURT, MUVATTUPUZHA AS E.P. NO.29/2017 DATED 07/08/2017. EXHIBIT P5 TRUE PHOTOSTAT COPY OF THE CLAIM PETITION DATED 17/02/2021 SUBMITTED BEFORE THE 2ND RESPONDENT.

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RESPONDENT'S EXHIBITS:NIL

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RMV/02/03 //TRUE COPY// PA TO JUDGE

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WP(C).5380/2021, WP(C).5323/2021, WP(C).5431/2021 12

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APPENDIX OF WP(C) 5431/2021

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PETITIONER'S EXHIBITS:

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EXHIBIT P1 TRUE PHOTOSTAT COPY OF THE DECREE IN O.S.NO. 283/2014 ON THE FILES OF SUB COURT, ERNAKULAM DATED 22.09.2015. EXHIBIT P2 TRUE PHOTOSTAT COPY OF THE SETTLEMENT TERMS WHICH FORMS PART OF THE MEDIATION ALONGWITH THE REPORT OF THE MEDIATOR DATED 11.09.2015. EXHIBIT P3 TRUE PHOTOSTAT COPY OF THE SALE NOTIFICATION FIXING DATED OF SALE AS ON 03.03.2021 DATED 01.02.2021. EXHIBIT P4 TRUE PHOTOSTAT COPY OF THE EXECUTION PETITION FILED BEFORE SUB COURT, MUVATTUPUZHA AS E.P. NO.29/2017 IN O.S.NO. 283/14 DATED 07.08.2017. EXHIBIT P5 TRUE PHOTOSTAT COPY OF THE CLAIM PETITION DATED 17.02.2021 SUBMITTED BEFORE THE 7TH RESPONDENT.

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RESPONDENT'S EXHIBITS:NIL

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RMV/02/03 //TRUE COPY// PA TO JUDGE

Sabu. M.C v. State of Kerala

Case brief

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Sabu. M.C v. State of Kerala

Case brief

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