Dismissed

Madhukanth R.Shah v. State of Kerala

Kerala HC21 Mar 2024WP(C)/16718/2016

Case brief

AI extract

What is this about?

Petitioners challenged a 2004 Recovery Officer auction sale under a DRT recovery certificate, alleging fraud and collusion by a bank-panel lawyer whose relatives purchased the properties, and sought to block mutation. The court found culpable delay and laches: the second petitioner knew of the sale by July 2005, Sections 14 and 17 of the Limitation Act did not apply, and no fraud ingredients were

What the court decided

AI extract

Madhukanth R.Shah Vs State of Kerala — Banking and Recovery | Kerala HC (2024)

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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 GOPINATH P.

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THURSDAY, THE 21^ST DAY OF MARCH 2024 / 1ST CHAITHRA, 1946

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WP(C) NO. 6557 OF 2017

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PETITIONERS:

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1 M/S.UNIVERSAL AGENCIES, CHUNGAM, ALAPPUZHA REPRESENTED BY ITS MANAGING PARTNER MADHUKANT R. SHAH, AGED 63 YEARS, S/O. RATILAL DOONGERSI SHAH, 12/21, MAHALAKSHMI NAGAR,T.KOTTAMPATTI, POLLACHI, TAMIL NADU, PIN-642002.

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2 MADHU KANT R.SHAH, AGED 63 YEARS, S/O. RATILAL DOONGERSI SHAH, 12/21, MAHALAKSHMI NAGAR, T-KOTTAMPATTI, POLLACHI, TAMIL NADU, PIN 642002. (FORMERLY RESIDING AT GURUKRIPA, ALLEPPY WEST VILLAGE, AMBALAPPUZHA TALUK, KERALA) NOW RESIDING AT 29, SETHUPATHY NAGAR, POLLACHI, TAMIL NADU, PIN-642002.

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3 VEENA MADHUKANT SHAH, AGED 59 YEARS, W/O. MADHUKANT R.SHAH, 12/21, MAHALAKSHMI NAGAR, T-KOTTAMPATTI, POLLACHI, TAMIL NADU, PIN 642002. (FORMERLY RESIDING AT GURUKRIPA, ALLEPPY WEST VILLAGE, AMBALAPPUZHA TALUK, KERALA) NOW RESIDING AT 29, SETHUPATHY NAGAR, POLLACHI, TAMIL NADU, PIN-642002. BY ADVS. G.HARIHARAN PRAVEEN.H. K.S.SMITHA V.R.SANJEEV KUMAR B.R.SINDU

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RESPONDENTS:

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1 STATE BANK OF INDIA, REPRESENTED BY THE CHIEF MANAGER, C & I DIVISION, BEACH MAIN BRANCH, ALAPPUZHA PIN-688012.

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2 P.RADHAKRISHNAN PANICKER, AGED 56 YEARS, S/O. (LATE), C.K.PADMANABHAN NAIR, CHITRANJALI, KOLATHERI ROAD, POONITHURA POST, PETTA, ERNAKULAM, PIN-682038.

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3 MS. C.S.SAVITHRI, AGED 50 YEARS D/O(LATE) KALLELIL K.P.CHELLAPPAN NAIR, CHITHRANJALI, KOLATHERI ROAD, POONITHURA POST, PETTA, ERNAKULAM, PIN-682038.

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4 ADV. C.PARAMESWARAN, AGED 52 YEARS, S/O. (LATE) KALLELIL K.P.CHELLAPPAN NAIR, THONDANKULANGARA, MULLAKKAL VILLAGE, AMBALAPPUZHA TALUK, ALAPPUZHA, PIN 688001

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W.P.(C.)Nos.6557 of 2017 & 16718 of 2016

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5 CHANDRA BABU, AGED 46 YEARS, SILPAYIL ZILLA, COURT WARD, ALAPPUZHA, PIN 688013. 6 STATE OF KERALA, REPRESENTED BY CHIEF SECRETARY,GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM PIN-695001. 7 THE ASST. COMMISSIONER (ASSESSMENT), COMMERCIAL TAXES, SPECIAL CIRCLE, ALAPPUZHA, PIN-688001. 8 REGIONAL DIRECTOR, E.S.I. CORPORATION , BASHADEEP TOWN, SWARAJ ROUND NORTH, THRISSUR, PIN-680001. BY ADVS. THUSHARA JAMES, SR. GOVERNMENT PLEADER P.B.KRISHNAN (SR.)- R2 & R3 SABU GEORGE LATHA ANAND – R4 S.EASWARAN, SC, SBI P.SANKARANKUTTY NAIR, SC, ESI CORPN S.AMBILY A.K.PREETHA K.K.CHANDRAN PILLAI (SR.) NEELAKANDAN P.M. P.B.SUBRAMANYAN MANU VYASAN PETER

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 21.03.2024, ALONG WITH WP(C).16718/2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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W.P.(C.)Nos.6557 of 2017 & 16718 of 2016

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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 GOPINATH P.

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THURSDAY, THE 21^ST DAY OF MARCH 2024 / 1ST CHAITHRA, 1946

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WP(C) NO. 16718 OF 2016

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PETITIONER:

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MADHUKANTH R.SHAH

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AGED 62 YEARS, S/O. RATILAL DOONGERSI SHAH, 12/21, MAHALAKSHMI NAGAR, T.KOTTAMPATTI,MAHALANGAPURAM P.O., POLLACHI, COIMBATORE DISTRICT, TAMIL NADU.(FORMERLY RESIDING AT GURUKRIPA, ALLEPPEY WEST VILLAGE, AMBALAPUZHA TALUK, ALLEPPEY DISTRICT, NOW RESIDING AT 29, SETHUPATHY NAGAR, POLLACHI, TAMIL NADU-642 002.

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BY ADVS. G.HARIHARAN PRAVEEN.H.(K/1441/2002) K.S.SMITHA(K/106/2012) V.R.SANJEEV KUMAR(K/000741/2017) B.R.SINDU(K/632/2002.)

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RESPONDENTS:

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1 STATE OF KERALA

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REPRESENTED BY CHIEF SECRETARY, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001.

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2 THE DISTRICT COLLECTOR

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ALAPPUZHA, CIVIL STATION P.O., ALAPPUZHA-688 012.

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3 ADDL. TAHSILDAR

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TALUK OFFICE, AMBALAPUZHA, ALAPPUZHA-688 001.

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4 VILLAGE OFFICER

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MULLACKKAL VILLAGE, NEAR PRIVATE BUS STAND, ALAPPUZHA-688 001.

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5 C.A.SAVITHRI AGED 49 YEARS, D/O. LATE KALLELIL K.P.CHELLAPPAN NAIR, CHITRANJALI, KULACHERY ROAD, PUNITHURA ROAD, PETTAH, ERNAKULAM.

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6 P.RADHAKRISHNAN PANICKER

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AGED 55 YEARS, S/O. LT.C.K.PADMANABHAN NAIR,CHITRANJALI, KULACHERY ROAD, PUNITHURA ROAD, PETTAH, ERNAKULAM.

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7 STATE BANK OF INDIA REPRESENTED BY THE ASSISTANT GENERAL MANAGER,BEACH MAIN BRANCH, ALAPPUZHA-688 012.

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W.P.(C.)Nos.6557 of 2017 & 16718 of 2016

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8 THE VILLAGE OFFICER ALAPPUZHA WEST VILLAGE, BEACH, ALAPPUZHA-688 012.

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9 C.PARAMESHWARAN AGED 50 YEARS, S/O. CHELLAPPAN NAIR, ADVOCATE, KALLELIL, THONDAKULANGARA, MULLAKKAL VILLAGE, AMBALAPUZHA TALUK, ALAPPUZHA DISTRICT-688 013. 10 CHANDRA BABU AGED ABOUT 45 YEARS, SILPAYIL, ZILLA COURT WARD, ALAPPUZHA-688 013.

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11 THE ASSISTANT COMMISSIONER (ASSESSMENT) COMMERCIAL TAXES, SPECIAL CIRCLE, ALAPPUZHA-688 012.

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12 TAHSILDAR REVENUE RECOVERY TALUK OFFICE, AMBALAPPUZHA, ALAPPUZHA DISTRICT-688 001.

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13 B.JAYASANKAR AGED ABOUT 65 YEARS, S/O. NOT KNOWN, ADVOCATE, M/S. SANKAR & KUMAR, ADVOCATES, 2ND FLOOR, SANTHI TOTEKAT ESTATES,CHITTOOR ROAD, (SOUTH END), KOCHI-682 016. [DELETED] - DELETED THE RESPONDENT NO.13 FROM THE PARTY ARRAY AS PER ORDER DATED 22/06/2017 IN IA.9184/17 AT THE RISK OF THE PETITIONER]. BY ADVS. THUSHARA JAMES, SR. GOVERNMENT PLEADER P.B.KRISHNAN – R2 & R3 SABU GEORGE LATHA ANAND- R4 DEEPTHI ROSE J. P.M.NEELAKANDAN P.B.SUBRAMANYAN K.ANAND SR. R.ANJALI B.ANUSREE E.U.DHANYA MANU VYASAN PETER JOSEPH SEBASTIAN PARACKAL S.RADHAKRISHNAN S.RAJMOHAN SHALINI GOPINATHAN NAIR

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 21.03.2024, ALONG WITH WP(C).6557/2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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W.P.(C.)Nos.6557 of 2017 & 16718 of 2016

C.R.

JUDGMENT

[W.P.(C.) Nos.6557/2017, 16718/2016]

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Dated this the 21^st day of March, 2024

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vigilantibus et non dormientibus jura subveniunt (the law assists those who are vigilant and not those who are indolent). If there is a case that calls upon this Court to apply the principle contained in the above maxim, this is it.

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These writ petitions are intrinsically

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connected with each other and essentially relate to the same subject matter. Therefore, they can be conveniently disposed of by common judgment. W.P(C.) No.16718 of 2016 is filed praying inter alia for a direction to the State and Revenue officials, namely respondents 1, 2, 3 and 4 in that writ petition not to effect mutation with regard to 1.70 acres of land in Sy.Nos.848/1A/1/1, 848/1D, 847/6A and 847/6B in

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Mullackal Village and another 35.073 cents in Sy.Nos.515/7A/2 and 515/6B/2 of Alappuzha West Village in Ambalapuzha Taluk of Alappuzha District, in the name of respondents 5, 6, 9, 10, 13 (13^th respondent has subsequently been deleted from the array of parties) or anybody claiming under them. W.P.(C.) No.6557 of 2017 has been filed challenging Ext.P16 order dated 07.10.2002 of the Debts Recovery Tribunal, Ernakulam in O.A.No.115/2002 and also seeking to quash the sale proclamation in D.R.C No.1036/SBI/ALP in O.A.No.115/2002 and to set aside the sale conducted by the Recovery Officer of the Debts Recovery Tribunal on 18.03.2004 and 30.09.2004, in respect of the properties covered by Exts.P2 and P3 documents. The learned Counsel appearing for various parties agrees that W.P.(C.) No.6557 of 2017 may be taken as the lead case. Therefore, exhibits and the parties referred to in this judgment are as they are marked in W.P.(C.) No.6557 of 2017, unless specifically indicated to be otherwise.

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W.P.(C.)Nos.6557 of 2017 & 16718 of 2016

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The 1^st petitioner is a partnership firm. The 2^nd and 3^rd petitioners are its present partners. Going by the pleadings in the writ petition, the firm was originally constituted through a deed of partnership dated 01.04.1992 by three persons together with the 3^rd petitioner, who is the wife of the 2^nd petitioner. It is stated that on 01.02.1997, the three other partners, except the 3^rd petitioner, retired from the partnership and the 2^nd petitioner was inducted into the partnership. The 2^nd petitioner obtained 170 cents of land in Sy.Nos.848/1A/1/1, 848/1D, 847/6A and 847/6B in Mullackal Village of Ambalapuzha Taluk of Alappuzha District under a family partition deed, which is on record as Ext.P2 dated 17.02.1997. The 2^nd petitioner also purchased another item of property having an extent of 35.73 cents of land in Sy.Nos.515/7A/2 and 515/6B/2 of Alappuzha West Village in Ambalapuzha Taluk of Alappuzha District by Ext.P3 document dated 18.02.1997. The properties covered by Exts.P2 and P3 documents were

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mortgaged with the State Bank of India, Main Branch, Beach Road, Alappuzha to avail credit facilities for the business of the partnership firm. On default being committed, the bank initiated proceedings under the Recovery of Debts And Bankruptcy Act, 1993, (earlier known as ‘the Recovery of Debts due to Banks and Financial Institutions Act, 1993’) before the Debts Recovery Tribunal, Ernakulam by filing O.A.No.115/2002. Through Ext.P16 order dated 07.10.2002, the Original Application was allowed and the State Bank of India was permitted to recover a total amount of Rs.1,36,73,307/- (Rupees one crore thirty six lakhs seventy three thousand three hundred seven only) together with interest at 12% per annum from the date of Original Application till realization. Following the issuance of a recovery certificate, the properties were notified for sale by the Recovery Officer in D.R.C. No.1036/SBI/ALP in O.A.No.115/2002. The property covered by Ext.P3 document was sold in an auction on 18.03.2004 and the property covered

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by Ext.P2 document was sold in an auction on 30.09.2004. Since there were no applications for setting aside the sale conducted in terms of the provisions contained in the Second Schedule to the Income Tax Act, 1961, the sale conducted in respect of both items of properties have been confirmed. The petitioners are now before this Court seeking the reliefs as aforesaid.

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Sri. G. Hariharan, the learned Counsel

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appearing for the petitioners would vehemently contend that the entire sale proceedings conducted by the Recovery Officer are vitiated by fraud and material irregularities. It is submitted that the 4^th respondent is a lawyer practicing in Alappuzha who was regularly engaged in respect of certain cases for the 2^nd petitioner. It is submitted that the legal opinion obtained by the bank, before the sanctioning of the credit facilities, will show that the legal opinion was furnished by the 4^th respondent, who was also a lawyer on the panel of lawyers for the State Bank of

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India. It is submitted that the 2^nd petitioner had contacted the 4^th respondent to defend him and the other petitioners in proceedings before the Debts Recovery Tribunal and then the 4^th respondent informed the petitioners that he could not represent them, as he was on the panel of lawyers for the State Bank of India. It is submitted that on the instructions of the 4^th respondent, the matter was entrusted to the 13^th respondent in W.P.(C.) No.16718 of 2016 (the 13^th respondent has been subsequently deleted from the array of parties), and he appeared on behalf of the petitioners before the Debts Recovery Tribunal. It is submitted that the petitioners do not intend to impugn the final order of the Debts Recovery Tribunal in O.A.No.115/2002 and are confining their challenge to the proceedings before the Recovery Officer. It is submitted that there are substantial tax liabilities, liabilities to the ESI Corporation, Provident Fund Organization etc., in respect of the 1^st petitioner firm and the sale of the properties by the bank in

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proceedings before the Recovery Officer for a throwaway price, has resulted in great prejudice to the petitioners. He states that the delay in challenging the sale is not fatal to the proceedings as the petitioners were bonafide prosecuting an insolvency petition, numbered as I.P. No.15/2003, before the Subordinate Judge's Court, Pollachi. It is submitted that the bank was also a party to the said proceedings. It is submitted that I.P.No.15/2003 was dismissed for default only on 22.10.2012 and the petitioners had approached the District Court, Coimbatore by filing C.M.A.No.1/2013. It is submitted that C.M.A.No.1/2013 was disposed of only on 25.04.2017 and immediately thereafter, the petitioners approached this Court by filing W.P. (C.)No.6557 of 2017, impugning the sale proceedings. It is submitted that the property covered by Ext.P2 document was purchased by the sister and brother-inlaw of the 4^th respondent, viz., respondents No.2 and 3. It is submitted that the property covered by Ext.P3

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document was also purchased by a benamidar of the 4^th respondent, viz., the 5^th respondent. It is submitted that the properties covered by Exts.P2 and P3 were found sufficient security for a loan, for the total amount of Rs.97 lakhs in the year 1999 has been sold at a throwaway price. It is submitted that the property covered by Ext.P2 (having an extent of 170 cents) was sold for a price of Rs.44 lakhs in the year 2004, while the property covered by Ext.P3 was sold

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for a sum of Rs.32.45 lakhs. It is submitted that this fact is sufficient to show that the properties were sold for a throwaway price with the active connivance and support of the 4^th respondent. It is submitted that the period during which I.P.No.15/2003 was pending before the Subordinate Judge's Court, Pollachi, and the time during which the C.M.A.No.1/2013 was pending before the District Court, Coimbatore must be excluded to consider whether the petitioners had challenged the sale within time. Reference is made in this regard to Section 14 of the Limitation Act, 1963

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(in short ‘the 1963 Act’). The learned Counsel also refers to the provisions of Section 17 of the same Act, to substantiate that where fraud is alleged, and such fraud could not be discovered in reasonable time, the petitioners are entitled to impugn the sale proceedings even at this distance of time.

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The learned Counsel appearing for the State Bank of India would vehemently oppose the grant of any relief to the petitioners. It is submitted that W.P. (C.) No.6557 of 2017, which is the petition filed challenging the sale proceedings must be dismissed on the sole ground of delay even if were to be held that a writ petition is maintainable in the matter. It is submitted that the sale of both the items of properties, viz. the properties covered by Exts.P2 and P3 documents were in the year 2004 and the petitioners cannot, after about 13 years of the sale, file a writ petition impugning the sale. It is submitted that even if it were to be held that the writ petition filed impugning the sale, was filed within reasonable

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time, a writ petition is not the remedy available to the petitioners to challenge the sale proceedings. It is submitted that there is no question of application of Section 14 of the 1963 Act, as that provision will apply only if the plaintiff/petitioner was prosecuting with due diligence another civil proceeding before a Court without jurisdiction. It is submitted that, in the facts of the present case, the indigent petition was filed even before the date of sale, therefore, it cannot by any stretch of imagination be referred to as a petition filed challenging the sale before a Court without jurisdiction. In other words, it is submitted that when there were no proceedings pending before any Court, impugning the sale proceedings, there was no question of application of Section 14 of the 1963 Act. It is submitted that the question of applying the provisions of Section 17 of the 1963 Act, also does not arise for consideration, as the 2^nd petitioner had himself filed an affidavit in the year 2005 before the Debts Recovery Tribunal where he had stated that the

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sale conducted in respect of the properties covered by Exts.P2 and P3 were vitiated for lack of publication and on the ground that they were sold at a throwaway price. In other words, it is submitted that this is not a case where the alleged fraud was discovered only later, for the provisions of Section 17 of the 1963 Act to apply. It is submitted that in such circumstances, that these writ petitions are liable to be dismissed.

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Sri. P.B. Krishnan, the learned Senior Counsel appearing for respondents 2 and 3, instructed by Adv. Sabu George, would fully endorse the submissions made by the learned Counsel appearing for the respondent bank. In addition, he refers to the document produced as Ext.R2(a) along with the counter affidavit of respondents 2 and 3, to contend that the 2^nd petitioner was fully aware of the sale proceedings and had even taken up a contention

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before the Debts Recovery Tribunal, in I.A.No.941/2005 in D.R.C. No.1036/SBI/ALP in

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O.A.No.115/2002 that the sale of the properties was illegal and unsustainable. It is submitted that having taken such a contention before the Debts Recovery Tribunal, the petitioners cannot be now heard to contend that they are entitled to maintain a writ petition impugning the sale conducted in the year 2004 by filing a writ petition in the year 2017. He also states that respondents 2 and 3 vehemently deny that the 4^th respondent had any role, whatsoever in their bid for the property covered by Ext.P2. It is submitted that, merely because the 4^th respondent was a lawyer for the State Bank of India in its panel of lawyers for conducting cases in Alappuzha, the contention that his sister and brotherin-law, viz., respondents 2 and 3 could not participate in an auction conducted by the Recovery Officer of the Debts Recovery Tribunal, is far fetched. The proceedings before the Recovery Officer of the Debts Recovery Tribunal in D.R.C. No.1036/SBI/ALP are also referred to show that it was after several

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W.P.(C.)Nos.6557 of 2017 & 16718 of 2016 17

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unsuccessful attempts to sell the properties, that the sale was conducted in favour of respondents 2 and 3. The learned Senior Counsel would also submit that the contention that there are substantial statutory liabilities, the recovery of which would be affected by the sale of the properties in the manner described above is also untenable for the reason that Exts.P2 and P3 properties belonged exclusively to the 2^nd petitioner. It is submitted that the liabilities referred to are the liabilities which arose before the induction of the 2^nd petitioner as a partner of the firm and therefore, by no stretch of imagination can it be said that the properties can be proceeded against for recovery of the statutory dues. It is also pointed out that, it does not lie in the mouth of the petitioners to contend that the sale must be set aside, as there are statutory dues which had to be recovered by the sale of the properties in question. It is submitted that the sale was conducted strictly in accordance with the provisions contained to the second schedule of the

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Income Tax Act, 1961. It is also pointed that there was proper publication and proclamation of sale at every stage and the reduction in the reserved price was permitted after following due procedure.

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The learned Counsel appearing for the 4^th respondent would submit that the 4^th respondent had absolutely no role in the sale of the properties covered by Exts.P2 in favour of respondents 2 and 3. It is submitted that the 4^th respondent was not, in any manner involved with the conduct of the case before the Debts Recovery Tribunal and was not even aware of the proceedings before the Debts Recovery Tribunal. It is submitted that unnecessary allegations have been raised against the 4^th respondent, only to give colour to the baseless allegation that the sale of the property was a collusive affair and was vitiated by fraud.

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The learned Senior Government Pleader appearing for the official respondents would submit that the State has no contention to be raised at this

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point in time regarding the disputes between the petitioners and the other respondents. It is submitted that it may be clarified that the adjudication of the issues in these writ petitions will not prevent the State from proceeding against the properties in question, if such proceedings are authorized by the law.

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Having heard the learned Counsel appearing for the petitioners, the learned Standing Counsel appearing for the State Bank of India, the learned Senior Counsel appearing for respondents 2 and 3, the learned Senior Government Pleader appearing for the official respondents and the learned Counsel appearing for the 4^th respondent, I am of the view that the petitioners cannot be granted any relief in these writ petitions. As already noted, W.P.(C.) No.16718 of 2016 is filed seeking a direction to the State of Kerala and the officials of the Revenue Department, not to effect mutation in respect of the properties sold in auction in proceedings before the

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Recovery Officer of the Debts Recovery Tribunal. Apart from the fact that the said prayer may not be maintainable, the ground upon which such prayer is raised is that there are statutory dues owed to the Government and other Departments and therefore, the sale could not have been held. I am clear in my mind that the petitioners cannot be heard to contend that the mutation, following the sale conducted by the Recovery Officer, should be prohibited based on the contention that there are other statutory liabilities. Further it is settled that mutation is only for fiscal purposes and such mutation does not affect the right of the State to proceed against the properties, if such proceedings are authorized by the law. That apart, the writ petition in question has been filed only in the year 2016 and in respect of the sale of properties covered by Exts.P2 and P3 as early as in the year 2004. Therefore, W.P.(C.) No.16718 of 2016 is only to be dismissed.

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Coming to the prayers in W.P.(C.) No.6557 of 2017, I am of the view that the petitioners have not made out any case for the grant of reliefs sought in that writ petition. The sale of the property covered by Ext.P2 document was on 30.09.2004. The properties covered by Ext.P3 document were sold on 18.03.2004. W.P(C.) No.6557 of 2017, impugning the sale is filed only on 27.02.2017. The contention of the learned Counsel appearing for the petitioners that the petitioners are entitled to the benefits of Section 14 of the 1963 Act, or the principles governing Section 14 of the 1963 Act, is only to be rejected. Section 14 of the 1963 Act applies, where the plaintiffs/petitioners were bonafide prosecuting with due diligence another civil proceeding before a Court without jurisdiction. A reading of Section 14 of the 1963 Act indicates that the proceeding which was instituted before a Court without jurisdiction must relate to the same subject matter or must claim the same reliefs as sought in the subsequent

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proceedings. I.P. No.15/2003 filed before the Subordinate Judge’s Court, Pollachi, which is stated to be the proceeding which was being bonafide prosecuted with due diligence, was filed even before the sale in respect of the properties covered by Exts.P2 and P3 were held. By no stretch of imagination, can it be held that the said proceeding is a proceeding referred to in Section 14 of the 1963 Act, to apply the principles behind the provisions of that Section to determine whether the period spent in prosecuting that litigation must be ignored or excluded to consider whether the subsequent proceeding has been initiated in time. No doubt, W.P. (C.) No.6557 of 2017 is a writ petition filed under Article 226 of the Constitution of India and the provisions of the 1963 Act do not apply to such proceedings. However, Article 226 of the Constitution of India is a public law remedy and therefore, the delay and latches is fatal to the grant of relief in a writ petition under Article 226 of the Constitution of

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India. The petitioners ought to have approached this Court within a reasonable time. Even if this Court

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were to overlook the objections raised on behalf of the bank that a writ petition is not an appropriate remedy, the petitioners cannot be granted any relief as they ought to have approached this Court within a reasonable time. There is culpable delay and latches on the part of the petitioners in approaching this Court for relief. It is seen from the document produced as Ext.R2(a) that, as early as 05.07.2005, the 2^nd petitioner had filed an affidavit before the Debts Recovery Tribunal, stating that the sale was irregular and illegal. If the 2^nd petitioner was aware that the sale was illegal and unsustainable in July 2005, there is no reason forthcoming as to why he did not initiate appropriate proceedings at that point in time to impugn the sale proceedings. Similarly, no ground has been made out to apply the provisions of Section 17 of the 1963 Act which deals with the ‘effect of fraud or mistake’. There is nothing in the

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facts of this case to indicate that the petitioners were prevented by fraud or mistake from challenging or impugning the sale proceedings in time. As already noted above, Ext.R2(a) document shows that at least in July 2005, the 2^nd petitioner was aware of the fact that the properties covered by Exts.P2 and P3 documents have been sold in auction by the Recovery Officer. Therefore, the petitioners are not entitled to the benefit of any principle flowing from Section 17 of the 1963 Act. In Hameed Joharan v. Abdul Salam, [(2001) 7 SCC 573 ], it was held:-

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“14. Needless to record that engrossment of stamped paper would undoubtedly render the decree executable but that does not mean and imply, however, that the enforceability of the decree would remain suspended until furnishing of the stamped paper - this is opposed to the fundamental principle on which the statutes of limitation are founded. It cannot but be the general policy of our law to use the legal diligence and this has been the consistent legal theory from the ancient times: even the

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doctrine of prescription in Roman law prescribes such a concept of legal diligence and since its incorporation therein, the doctrine has always been favoured rather than claiming disfavour. Law courts never tolerate an indolent litigant since delay defeats equity - the Latin maxim vigilantibus et non dormientibus jura subveniunt (the law assists those who are vigilant and not those who are indolent). As a matter of fact, lapse of time is a species for forfeiture of right. Wood, V.C. in Manby v. Bewicke [(1857) 3 K&J 342 : 69 ER 1140] (K&J at p. 352) stated: (ER p. 1144)

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“The legislature has in this, as in every civilized country that has ever existed, thought fit to prescribe certain limitations of time after which persons may suppose themselves to be in peaceful possession of their property, and capable of transmitting the estates of which they are in possession, without any apprehension of the title being impugned by litigation in respect of transactions which occurred at a distant period, when evidence in support of their own title may be most difficult to obtain.”

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In the facts of the present case, even a suit for declaration, or to recover possession of mortgaged property or to recover possession on the strength of title would be barred on the date of filing of W.P.(C.) No.6557 of 2017 [See articles 58, 61(b) and 65 of the First Schedule to the 1963 Act].

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The fact that the sister and brother-in-law of the 4^th respondent (who is a lawyer at the panel of the State Bank of India) had purchased the property covered by Ext.P2, initially raised an apprehension in the mind of this Court as to whether there was any merit in the contentions taken by the petitioners. On a perusal of the materials produced along with the writ petition, I am unable to find any materials which would suggest that the 4^th respondent is in any manner connected with the purchase of the property covered by Ext.P2 by respondents 2 and 3. Moreover, for invoking Section 17 of the 1963 Act, two ingredients have to be pleaded and duly proved. One is existence of a fraud and the other is discovery of

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W.P.(C.)Nos.6557 of 2017 & 16718 of 2016

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such fraud. In the present case, since the petitioner failed to establish both the ingredients, he cannot be extended the benefit under the said provision.

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The writ petitions fail and are accordingly dismissed. It is clarified that this judgment shall not be treated as deciding any issue on account of any statutory liabilities and the legality or otherwise of any action that may be initiated by the State or any statutory authority, if so advised.

Sd/GOPINATH P.

JUDGE

NB/DK/21-3

W.P.(C.)Nos.6557 of 2017 & 16718 of 2016

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APPENDIX OF WP(C) 16718/2016

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PETITIONER EXHIBITS EXHIBIT P1	TRUE COPY OF THE REVENUE RECOVERY NOTICE UNDER SECTION 7 OF REVENUE RECOVERY ACT, DTD.24.3.2015.
EXHIBIT P2	TRUE COPY OF NOTICE UNDER SECTION 34 OF THE REVENUE RECOVERY ACT, DTD.24.3.2015.
EXHIBIT P3	TRUE COPY OF LETTER SENT BY THE PETITIONER DTD.19.9.2001 TO THE 7TH RESPONDENT.
EXHIBIT P4	TRUE COPY OF ANOTHER LETTER SENT BY THE PETITIONER DTD.26.9.2001 TO THE 7TH RESPONDENT.
EXHIBIT P5	TRUE COPY OF ANOTHER LETTER DTD.15.10.2001 IN THE NAME OF UNIVERSAL AGENCIES TO THE 7TH RESPONDENT BANK.
EXHIBIT P6	TRUE COPY OF THE LETTER/NOTICE DTD.6.11.2001 IS ISSUED BY THE 7TH RESPONDENT TO THE PETITIONER.
EXHIBIT P7	TRUE COPY OF THE CERTIFICATE OF SALE OF IMMOVABLE PROPERTY DTD.30.11.2004 ISSUED BY RECOVERY OFFICER OF DEBT RECOVERY TRIBUNAL TO THE 5TH AND 6TH RESPONDENT.
EXHIBIT P8	TRUE COPY OF REPRESENTATION DTD.19.4.2016 BY REGISTERED POST TO THE 2ND RESPONDENT DISTRICT COLLECTOR ENUMERATING ALL THE ABOVE INCIDENCE.
EXHIBIT P9	TRUE COPY OF ANOTHER REPRESENTATION DTD.27.4.2016 TO THE 2ND RESPONDENT DISTRICT COLLECTOR.
EXHIBIT P10	TRUE COPY OF ANOTHER REPRESENTATION DTD.27.4.2016 TO THE 11TH RESPONDENT ASST. COMMISSIONER OF COMMERCIAL TAXES.
EXHIBIT P11	TRUE COPY OF THE LETTER SENT BY THE PETITIONER TO THE 3RD RESPONDENT DTD.17.12.2004.
EXHIBIT P12	TRUE COPY OF LETTER DTD.22.4.2016 ISSUED BY THE PETITIONER TO THE 9TH RESPONDENT.
EXHIBIT P13	TRUE COPY OF THE LETTER DTD.22.4.2016 ISSUED BY THE PETITIONER TO THE 13TH RESPONDENT.
EXHIBIT P14	TRUE COPY OF TITLE DEED OF THE PETITIONER DTD. 18.02.1997 (BEARING NO.767/97 SUB REGISTRY ALAPPUZHA) REGARDING 35.073 CENTS.
EXHIBIT P15	TRUE COPY OF THE LAWYER NOTICE DTD.14.12.2001 IS ISSUED BY ADVOCATE GEORGE THOMAS ON BEHALF OF THE 7TH RESPONDENT TO THE PETITIONER.
EXHIBIT P16 RESPONDENT EXHIBITS:	A TRUE COPY OF THE JUDGMENT MADE IN WRIT APPEAL NO.1555/2009 ON 08.03.2010
EXHIBIT R5 A	TUE COPY OF LAND TAX RECEIPT FOR THE YEAR 2013-14 UNDER TP NO. 12624 O MULLACKAL VILLAGE.

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W.P.(C.)Nos.6557 of 2017 & 16718 of 2016

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APPENDIX OF WP(C) 6557/2017

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PETITIONER EXHIBITS EXHIBIT P1	TRUE COPY	OF THE PARTNERSHIP DEED DATED 1.2.1997
EXHIBIT P2	TRUE COPY	OF THE DOCUMENT NO.736/97
EXHIBIT P3	TRUE COPY 18.2.1997	OF THE SALE DEED NO.757/97, DATED
EXHIBIT P4 EXHIBIT P5(A)	TRUE COPY TRUE COPY 6(1) AND 1 RULE, 1957 OF OCTOBER	OF THE VALUATION REPORT DATED 11.3.1997 OF FORM NO.11 FORM OF RETURN UNDER RULE (A) OF THE CENTRAL SALES TAX (KERALA) FILED BY THE PETITIONERS FOR THE MONTH 2001
EXHIBIT P5(B)	TRUE COPY RULE 6(1) (KERALA) R THE MONTH	OF FORM NO.11, FORM OF RETURN UNDER AND 1(A) OF THE CENTRAL SALES TAX ULE 1957 FILED BY THE PETITIONERS FOR OF NOVEMBER 2001
EXHIBIT P5(C)	TRUE COPY RULE 6(1) (KERALA) R THE MONTH	OF THE FORM NO.11-FORM OF RETURN UNDER AND 1(A) OF THE CENTRAL SALES TAX ULE,1957 FILED BY THE PETITIONERS FOR OF DECEMBER,2001
EXHIBIT P5(D)	TRUE COPY RULE 6(1) (KERALA) R THE MONTH	OF THE FORM NO.11 FORM OF RETURN UNDER AND 1(A) OF THE CENTRAL SALES TAX ULE, 1957 FILED BY THE PETITIONERS FOR OF JANUARY, 2002,
EXHIBIT P5(E)	TRUE COPY RULE 6(1) RULE, 1957 OF FEBRUAR	OF FORM NO.11- FORM OF RETURN UNDER AND 1(A) OF THE CENTRAL TAX (KERALA) FILED BY THE PETITIONERS FOR THE MONTH Y, 2002.
EXHIBIT P5(F)	TRUE COPY RULE 6(1) (KERALA) R THE MOTH O	OF FORM NO.11 -FORM OF RETURN UNDER AND 1(A) OF THE CENTRAL SALES TAX ULE, 1957 FILED BY THE PETITIONERS FOR F MARCH, 2002
EXHIBIT P6	TRUE COPY 11TH RESPO	OF THE COUNTER AFFIDAVIT FILED BY THE NDENT IN WPC NO.16718/2016
EXHIBIT P7	TRUE COPY	OF THE LETTER DATED 19.9.2001
EXHIBIT P8	TRUE COPY TO THE 1ST	OF THE LETTER DATED 26.9.2001 ADDRESSED RESPONDENT BANK
EXHIBIT P9	TRUE COPY ADDRESSED	OF THE LETTER DATED 15.10.2001 TO THE 1ST RESPONDENT BANK
EXHIBIT P10	TRUE COPY TO THE 1ST	OF THE LETTER DATED 3.12.2001 ADDRESSED RESPONDENT BANK
EXHIBIT P11	TRUE COPY THE PETITI 20.03.2002	OF A LETTER DATED 22.10.2001 ADVISING ONERS TO APPEAR BEFORE THE COURT ON
EXHIBIT P12	TRUE COPY THE 1ST RE	OF NOTICE DATED 6.11.2001 RECEIVED FROM SPONDENT

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W.P.(C.)Nos.6557 of 2017 & 16718 of 2016

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EXHIBIT P13	TRUE COPY OF THE LAWYER NOTICE DATED 14.12.2001
EXHIBIT P14	TRUE COPY OF THE NOTICE OF DEMAND TO THE DEFAULTER/ DEFENDANT IN DRC NO.1036 IN OA.115/02
EXHIBIT P15	TRUE COPY OF THE WRITTEN SUBMISSION DATED 19.7.2003 MADE BEFORE THE RECOVERY OFFICER TO GRANT 3 MONTHS TIME
EXHIBIT P16	TRUE COPY OF THE ORDER OF DRT IN OA NO.115/2002 DTD. 7.10.2002
EXHIBIT P17	TRUE COPY OF THE RECOVERY CERTIFICATE DATED 10.01.2003
EXHIBIT P18	TRUE COPY OF THE VALUATION REPORT DATED 21.5.2003 PREPARED BY MR.K.SREENIVASAN
EXHIBIT P19	TRUE COPY OF THE I.PNO.15/03 FILED IN THE POLLACHI COURT,
EXHIBIT P20	TRUE COPY OF COUNTER STATEMENT FILED BY THE 1ST RESPONDENT SBI ALAPPUZHA IN IP NO.15/2003
EXHIBIT P21	TRUE COPY OF THE PROCLAMATION OF SALE DTD. 13.2.2004
EXHIBIT P22	TRUE COPY OF THE AUCTION DIARY OF D.R.T. IN THE SALE PROCEEDINGS IN D.R.C.NO.1036/SBI/APZA IN OA.NO.115/2002
EXHIBIT P23	TRUE COPY OF THE POWER OF ATTORNEY GIVEN THE C.C.HARI, DATED 14.8.2004
EXHIBIT P24	TRUE COPY OF THE INTERIM ORDER DT. 6.5.2016 IN WRITE PETITION NO.16718/2016
EXHIBIT P25	TRUE COPY OF THE ORDER DATED 3.6.2016 IN WRIT PETITION NO.16718/2016
EXHIBIT P26	TRUE COPY OF THE DEMAND NOTICED SECTION 7 DATED 24.3.2015 UNDER COLLECTORATE FILE NO.2015/13584/4
EXHIBIT P27	TRUE COPY OF THE "DEMAND PRIOR TO ATTACHMENT OF LAND "NOTICE DATED 24.3.2015 UNDER COLLECTORATE FILE NO.2015/13584/4
EXHIBIT P28(A)	TRUE COPY OF THE APPLICATION DATED 5.9.2016 FILED BEFORE THE D.R.T. ERNAKULAM BY R2 AND R3
EXHIBIT P28(B)	TRUE COPY OF THE APPLICATION, DTD, 12.8.2016 FILED BY R2 & R3 BEFORE THE DISTRICT COLLECTOR, ALAPPUZHA.
EXHIBIT P29	TRUE COPY OF THE WRITTEN SUBMISSION DATED 7.12.2016 PLACED BEFORE THE RECOVERY OFFICER, D.R.T. ERNAKULAM
EXHIBIT P30	TRUE COPY OF THE EMPLOYEES INSURANCE CORPORATION DEMAND NOTICE NO.54-2958-90/RECOVERY DATED 5.5.2003
EXHIBIT P31	TRUE COPY OF THE ORDER OF THE EMPLOYEES INSURANCE COURT, ALAPPUZHA IN M.PNO.157/2003 IN I.C.NO.86/03
EXHIBIT P32	TRUE COPY OF THE COMPLAINT DATED 3.11.2016, FILED BEFORE THE BAR COUNCIL OF KERALA

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W.P.(C.)Nos.6557 of 2017 & 16718 of 2016

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EXHIBIT P33	TRUE COPY OF THE COUNTER AFFIDAVIT DTD.20.1.2017 FILED BY THE REVENUE RECOVERY THAHSILDAR, ALAPPUZHA IN WPC NO.16718/2016
EXHIBIT P34	TRUE COPY OF THE COMMUNICATION NO.KBC/COMPANY PETITION-14-17/2017 DATED 1603.2017 RECEIVED FROM THE BAR COUNCIL OF KERALA
EXHIBIT P35	TRUE COPY OF THE COMMUNICATION NO.CVC/RTI/17/938/370166, UNDATED RECEIVED FROM THE CENTRAL VIGILANCE COMMISSION
EXHIBIT P36	TRUE COPY OF THE COMPLAINT SUBMITTED BY THE PETITIONER BEFORE THE PRESIDENT, INSTITUTION OF VALUERS, DELHI- 110034
EXHIBIT P37	TRUE COPY OF THE VALUATION REPORT OF THE SAID RESIDENTIAL BUILDING WITH DOOR NO.XX/1153 DATED 21.12.1999 OF SRI. T.K. MUKUNDA MANI
EXHIBIT P38	TRUE COPY OF THE COMPLAINT FILED WITH THE OFFICE OF THE DY. SUPERINTENDENT OF POLICE ALAPPUZHA DATED 01.08.2016
EXHIBIT P39	TRUE COPY OF B.L.NO.86, UNDER FILE NO.32046/3204505 DATED 03.08.2016 ISSUED BY THE PUBLIC INFORMATION OFFICE, VILLAGE OFFICE, MULLACKAL
EXHIBIT P40	TRUE COPY OF THE PROPERTY TAX RECEIPT DATED 18.06.2016
EXHIBIT P41	TRUE COPY OF THE SAID LETTER NO.13015175/2018 DATED 09.10.2018 OF THE ASST. COMMISSIONER SALES TAX, ALAPPUZHA.
RESPONDENTS’ EXHIBITS:
EXHIBIT R2(a)	A TRUE COPY OF THE COUNTER AFFIDAVIT DATED 05.07.2005 IN I.A. NO.941 OF 2005 IN D.R.C. NO.1036 IN O.A.NO.115 OF 2022 ON THE FILE OF THE DEBT RECOVERY TRIBUNAL (KERALA) AT ERNAKULAM

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TRUE COPY

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P.A. TO JUDGE

Madhukanth R.Shah v. State of Kerala

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Madhukanth R.Shah v. State of Kerala

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