IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SATHISH NINAN
WEDNESDAY, THE 10TH DAY OF AUGUST 2022 / 19TH SRAVANA, 1944
OP(C) NO. 924 OF 2020
AGAINST THE ORDER IN IA 13/2020 & IA 17/2020 IN OS NO.6/2019 OF SUB
COURT, CHERTHALA
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PETITIONER:
C.B.SUSHAMA
W/O.ASHOK RAJ, AGED 57, TC 11/395, UTHRADAM HOUSE, KANAKA
NAGAR, KAWDIAR, THIRUVANANTHAPURAM, PIN 695003.
BY ADVS.
N.RATHEESH
SMT.SUMA RATHEESH
RESPONDENTS:
1 B.MOHANAN
S/O.C.G.BHASKARAN, AGED 65, GOVINDALAYAM, K.R.PURAM P.O.,
PALLIPPURAM VILLAGE, CHERTHALA, ALAPPUZHA DISTRICT, PIN - 688
541.
2 C.B.SUDHISH
S/O.C.G.BHASKARAN, AGED 55, GOVINDALAYAM, K.R.PURAM P.O.,
PALLIPPURAM VILLAGE, CHERTHALA, ALAPPUZHA DISTRICT, PIN - 688
541.
3 C.B.SUJATHA
D/O.C.G.BHASKARAN, AGED 61, NAVA JEEVAN, HOUSE NO.102,
NAGAMPADAM, KAZHUPPU KARA, MUTTAMBALAM, KOTTAYAM, PIN - 686
004.
4 REVATHY
D/O.MOHANAN, AGED 35, GOVINDALAYAM, K.R.PURAM P.O.,
PALLIPPURAM VILLAGE, CHERTHALA, ALAPPUZHA DISTRICT, PIN - 688
541.
5 AJITHA
W/O.MOHANAN, AGED 55, GOVINDALAYAM, K.R.PURAM P.O.,
PALLIPPURAM VILLAGE, CHERTHALA, ALAPPUZHA DISTRICT, PIN - 688
541.
OP(C) NO. 924 OF 2020 -2-
6 P.S.ANIL KUMAR
S/O.P.K.SREEDHARAN, SARADHANILAYAM, PATTANAKKAD, CHERTHALA,
ALAPPUZHA DISTRICT (DELETED FROM THE PARTY ARRAY), PIN - 688
531.
7 HEMALATHA
W/O.SUDHISH, AGED 49, GOVINDALAYAM, AGED 60, K.R.PURAM P.O.,
PALLIPPURAM VILLAGE, CHERTHALA, ALAPPUZHA DISTRICT, PIN - 688
541.
8 JOEMON JOSEPH
S/O.C.T.JOSEPH, CHANNAPPALLY HOUSE, PALLIPPURAM P.O.,
CHERTHALA, ALAPPUZHA DISTRICT, PIN - 688 541.
9 SHIVA KUMAR
LAKSHMI NIVAS, PALLIPPURAM P.O., CHERTHALA, ALAPPUZHA
DISTRICT, PIN - 688 541.
BY ADVS.
SRI.G.P.SHINOD
SRI.SHEJI P.ABRAHAM
SRI.O.K.MURALEEDHARAN
SRI.RAM MOHAN.G.
SRI.GOVIND PADMANAABHAN
SHRI.AJIT G ANJARLEKAR
THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 10.08.2022, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
SATHISH NINAN, J.
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O.P.(C) No.924 of 2020
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Dated this the 10th day of August, 2022
J U D G M E N T
The plaintiff in a suit for declaration that three sale deeds in favour of defendants 4, 5, and 7 are void, for partition and injunction, is the petitioner. She has approached this Court challenging the dismissal of her applications for re-opening of the evidence, and to call for records, filed as IA Nos.17/2020 and 13/2020 respectively.
2. Heard Sri.N.Retheesh, learned counsel appearing on behalf of the petitioner, Sri.Shinod G.P., learned counsel for respondents 1 to 4 and 7 and Sri.Sheji P. Abraham, learned counsel for the 8 th respondent.
3. According to the petitioner-plaintiff, Sri.C.G. Bhaskaran, the predecessor-in-interest of plaintiffs and respondents 1 to 3 had availed a mortgage credit facility from the Cherthala branch of the Dhanalakshmi Bank Limited. On the repayment being defaulted, the Bank O.P.(C) No.924 of 2020 -: 2 :- filed OS 72/1985 which was decreed. In the execution proceedings, the Bank purchased the mortgaged property. Pending the execution proceedings Sri.C.G.Bhaskaran had expired and the legal heirs including the plaintiff were impleaded as additional judgment debtors.
4. After the sale in the execution proceedings, the legal heirs including the plaintiff, made a request to the Bank for settlement of the liability under a One Time Settlement Scheme. The Bank agreed to the request. The One Time Settlement amount was paid by the legal heirs on 22.03.2001. Subsequently the plaintiff came to understand that attempts are being made by respondents 1 to 3-defendants 1 to 3 to alienate the property to strangers. On enquiry, it was understood that, the Bank had, pursuant to the payment of the OTS amount, executed re-conveyance deeds in favour of respondents 4, 5 and 7 (defendants 4, 5 and 7) who are immediate relations of respondents 1 and 2-defendants 1 and 2. The re- conveyance deeds are stated to have been executed based O.P.(C) No.924 of 2020 -: 3 :- on an alleged request dated 18.07.2001 made by all the legal heirs of late C.G.Bhaskaran including the plaintiff, before the Bank. A copy of the same is produced along with this writ petition as Ext.P2. The plaintiff herein is signatory No.3 therein. The plaintiff disputes the genuineness of Ext.P2. The 8 th respondent is a subsequent purchaser from the 7 th respondent. It is on these allegations that the suit has been filed.
5. Ext.P2 request being the document based on which the Bank executed the re-conveyance deeds in favour of defendants 4, 5 and 7, the plaintiff filed Ext.P10 petition as IA 400/2019 seeking to summon the original of Ext.P2 request and also the details of the statement of accounts of the mortgagor, from the Bank. On summons to the Manager, he appeared and filed Ext.P11 affidavit before the court, paragraph 5 and 6 of which reads thus:-
O.P.(C) No.924 of 2020 -: 4 :- "As per the circular issued by the Head Office of our Bank, there is only direction to keep original Bank documents for 10 (Ten) years.
Since the documents sought for by this Hon'ble Court are in the year 2001, we are not keeping the same."
6. Thereafter, the Manager was examined on the side of the plaintiffs as PW3. His deposition is to the effect that documents in connection with the re- conveyance of the property is available with the Bank, either in its godown or as soft copies. Thereupon the petitioner-plaintiff filed the applications IA 17/2020 to re-open the evidence, and IA 13/2020 to call for the records. The Court proceeded to dismiss applications as per Ext.P14 common order dated 16.03.2020.
7. Noticeably the re-conveyances were made by the Bank based on Ext.P2 request. The genuineness of Ext.P2 is disputed by the plaintiff. It is the burden of the plaintiff to prove that Ext.P2 request is not genuine. It is in the said background that the petitioner- O.P.(C) No.924 of 2020 -: 5 :- plaintiff has made earnest efforts to summon the original of Ext.P2 and the documents relating to the re- conveyance and the loan account. The evidence of the Bank Manager as PW3 would indicate that the old documents of the Bank are being kept in the godown of the Bank at Ernakulam. He has also deposed that documents relating to the assets of the Bank, assignment of the assets etc. are documents which are not destroyed but are to be retained by the Bank. He has also sworn to that soft copies of the documents consigned to the godown would be available. He has also said that a register is maintained with regard to the documents that are being destroyed. He has further deposed that, in the list of the documents consigned to godown, he has seen the name of C.G.Bhaskaran, the predecessor of the plaintiff. He has also said that the documents as sought for by the plaintiff would be available in the name of C.G.Bhaskaran. In the light of the above, the plaintiff- petitioner was justified in her request for summoning O.P.(C) No.924 of 2020 -: 6 :- the documents as sought for in IA 13/2020. The impugned common order, declining to reopen the evidence and to call for the records is liable to be set aside.
8. Accordingly Ext.P14 order dated 16.03.2020 in IA Nos.13/2020 and 17/2020 is set aside. The Court shall pass fresh orders on the applications in the light of the above.
Original petition is allowed as above.
Sd/-
SATHISH NINAN JUDGE kns/-
//True Copy// P.S. to Judge APPENDIX OF OP(C) 924/2020 PETITIONER EXHIBITS EXHIBIT P1 TRUE COPY OF THE PLAINT DATED 7/3/2019 IN O.S.NO.6/2002 OF THE SUB COURT, CHERTHALA.
EXHIBIT P2 TRUE COPY OF THE LETTER DATED 18/7/2001 SUBMITTED BY DEFENDANTS 1 TO 3 IN DHANALAKSHMI BANK.
EXHIBIT P3 TRUE COPY OF THE WRITTEN STATEMENT DATED 27/6/2019 FILED BY DEFENDANTS 1 TO 3 IN O.S.NO.6/2002 OF THE SUB COURT, CHERTHALA. EXHIBIT P4 TRUE COPY OF THE MEMO DATED 4/7/2019 SUBMITTED BY DEFENDANTS 4 & 7.
EXHIBIT P5 TRUE COPY OF THE WRITTEN STATEMENT DATED 27/6/2019 FILED BY THE 5TH DEFENDANT. EXHIBIT P6 TRUE COPY OF THE WRITTEN STATEMENT DATED NIL FILED BY THE 6TH RESPONDENT.
EXHIBIT P7 TRUE COPY OF THE WRITTEN STATEMENT DATED 27/6/2019 FILED BY THE 8TH RESPONDENT. EXHIBIT P8 TRUE COPY OF THE WRITTEN STATEMENT DATED 01/02/2020 FILED BY THE 9TH RESPONDENT. EXHIBIT P9 TRUE COPY OF THE DOCUMENT NO.1926/2002 DATED 29/4/2002 EXECUTED BY DHANALAKSHMI BANK IN FAVOUR OF 7TH DEFENDANT.
EXHIBIT P10 TRUE COPY OF THE I.A.NO.400/2019 DATED 12/7/2019 FILED BY THE PLAINTIFF IN O.S.NO.6/2002 OF THE SUB COURT, CHERTHALA. EXHIBIT P11 TRUE COPY OF THE AFFIDAVIT SUBMITTED BY THE BRANCH MANAGER OF DHANALAKSHMI BANK IN REPLY TO EXT.P10.
EXHIBIT P12 TRUE COPY OF THE DEPOSITION OF THE BRANCH MANAGER OF DHANLAKSHMI BANK WHILE HE WAS SUMMONED AS PW3.
APPENDIX - OP(C) 924/2020 -2- EXHIBIT P13 TRUE COPY OF THE APPLICATION FILED BY THE PLAINTIFF AS I.A.NO.13/2020 DATED 10/3/2020 IN O.S.NO.6/2002 OF THE SUB COURT, CHERTHALA. EXHIBIT P14 TRUE COPY OF THE ORDER DATED 16/3/2020 IN I.A.NO.13/2020 IN O.S.NO.6/2002 OF THE SUB COURT, CHERTHALA.
RESPONDENT EXHIBITS Exhibit R8 COPY OF THE JUDGMENT DTD 12/12/2019 IN FAO NO.285/2019
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