Dismissed

Ottur Service Co-Op.Bank v. Tahsildar, Varkala

Kerala HC25 May 2023WP(C)/37611/2015

Case brief

AI extract

What is this about?

Petitioner bank sought recovery from respondent property, alleging a first charge via mortgage against a proceeding for asset alienation/restraint under maintenance orders of the Magistrate Court. The Court refused to adjudicate merits, directing the petitioner to seek factual clarification from the Magistrate Court first. The writ was closed without entering into the rival contentions on priority

What did the court decide?

Writ petition dismissed without deciding merits; liberty reserved to petitioner to approach the Court if required by the decision of the Magistrate.

Ottur Service Co-Op.Bank Vs Tahsildar, Varkala — Domestic Violence | Kerala HC (2023)

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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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THURSDAY, THE 25^TH DAY OF MAY 2023 / 4TH JYAISHTA, 1945

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WP(C) NO. 37611 OF 2015

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PETITIONER:

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OTTUR SERVICE CO-OP.BANK LTD.NO.976, REPRESENTED BY SECRETARY, CHENNANCODE, VADASSERIKONAM, THIRUVANANTHAPURAM-695143.

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BY ADV SRI.P.N.MOHANAN

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RESPONDENTS:

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1 TAHSILDAR, VARKALA THIRUVANANTHAPURAM-695141.

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2 BALACHANDRAKURUP

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VIPIN BHAVAN, MULLARAMCODE, THOTTAKKADU P.O., THIRUVANANTHAPURAM-695605.

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3 ADDL.R3 SHYNY, SHINY BHAVAN, PARAKUNNU P.O., NAVAIKULAM, THIRUVANANTHAPURAM. (IMPLEADED AS PER ORDER DATED 19/01/2016 IN IA.NO.408/2016).

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SMT.MABLE C KURIAN-SR.GP

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 25.05.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C) NO. 37611 OF 2015

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JUDGMENT

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The petitioner - Co-operative Society wants to sell a property belonging to the second respondent, for recovery of a certain loan allegedly availed of by him from them. They assert that this property is mortgaged to them and therefore, that they are holding a first charge; but alleges that the first respondent is proceeding against the same on the basis of an order said to have been obtained by the third respondent - who is the wife of the second respondent – from the Court of the Judicial First Class Magistrate, Varkala in MC 167/2010, filed by her seeking maintenance. They say that the action of the first respondent in proceeding against the property is illegal because, as said above, they are holding a first charge over it.

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Smt.Mable C.Kurian - learned Senior Government Pleader, appearing for the first respondent, in response, submitted that her client is only acting as per lawful orders of the Magistrate Court and that, to her best information, the alleged mortgage claimed by the petitioner – Society, is subsequent to the said orders. She explained that the learned Magistrate has, in fact, passed directions restraining

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WP(C) NO. 37611 OF 2015

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the second respondent from alienating, or otherwise encumbering, his assets and therefore, that the first respondent was fully justified in proceeding against the property in question.

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I notice from the file that, even though service of summons from this Court have been validly done on the 2^nd respondent, he has chosen not to be present in person or to be represented through counsel; inferentially guiding me to the impression that he has nothing to offer in opposition to the various reliefs sought for in this writ petition.

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That said, hearing the parties as afore on an earlier occasion, this Court had called for a report from the Court of the Judicial First Class Magistrate, Varkala and the same has been made available, as per which, the submissions of Smt.Mable C.Kurian appear to have credence. The copy of the order issued by the said Court has also been sent to this Court, which is to the following effect:

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"1. This is an application filed against respondent for the reliefs u/s. 18,19, 20 & 22 of the Domestic Violence Act on the allegation that respondent, the legally wedded husband of the first applicant is exerting domestic violence as against her and the other applicants, her minor children.

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WP(C) NO. 37611 OF 2015

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Respondent received notice and entered appearance. But he did not filed any objection to the application. Hence he set expartie. First applicant filed chief affidavit reiterating the averments of the contents in the application, which stands not challenged making it to be accepted and acted upon. Accordingly I being satisfied with the case of the applicant with the above unchallenged evidence partially allow this application granting the relieves stated below:-

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An order restraining the respondents from committing any act of domestic violence as against the applicants.

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An order restraining the respondents from alienating and otherwise encumbering his assests.

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An order directing the respondent to pay an amount of 4000/- rupees per month to the applicants for their monthly maintenance

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The prayer for compensation is disallowed for their being no positive evidence to prove the applicant sustaining damage in the violence exerted by the respondent. (sic.)”

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It is, therefore, obvious that proceedings are now pending before the Court of the Judicial First Class Magistrate, Varkala; and I see no reason why the petitioner should have approached this Court directly, without having approached the said Court first. This is more so because, there is a dispute as to whether the mortgage was created before or after the orders of the learned Magistrate and I am certain that if a suitable claim is moved by the petitioner before the said Court, the matter can obtain a factual

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WP(C) NO. 37611 OF 2015

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resolution, which this Court cannot do, while acting under Article 226 of the Constitution of India.

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Resultantly, reserving the afore liberty to the petitioner, I close this writ petition without entering into the merits of any of the rival contentions and leaving them all open; but with liberty reserved to the petitioner to approach this Court again, if so required in future.

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Sd/- DEVAN RAMACHANDRAN

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JUDGE

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stu

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WP(C) NO. 37611 OF 2015

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APPENDIX OF WP(C) 37611/2015

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PETITIONER EXHIBITS

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EXHIBIT P1: A TRUE COPY OF THE GEHAN EXECUTED ALONG WITH THE ENCUMBRANCE CERTIFICATE ISSUED BY THE SUB REGISTRAR OFFICE, KAVALAYOOR.

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EXHIBIT P2: A TRUE COPY OF THE SALE NOTICE DATED 24.11.2015 ISSUED BY THE FIRST RESPONDENT.

Ottur Service Co-Op.Bank v. Tahsildar, Varkala

Case brief

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What did the court decide?

Ottur Service Co-Op.Bank v. Tahsildar, Varkala

Case brief

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What did the court decide?

What the court decided

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