Sabu M.C vs State Of Kerala
2021 Latest Caselaw 7183 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM

                               PRESENT

               THE HONOURABLE MR. JUSTICE SUNIL THOMAS

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

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


PETITIONER:

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

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

RESPONDENTS:

      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-682030,
               REP. BY ITS GENERAL MANAGER.

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

      5        SHRI. T.P.JAMES,
               AGED 50 YEARS,
               S/O.THOMAS,
               PULICKAL HOUSE,
               H.NO.IX/96,
               PIRAVOM GRAMA PANCHAYAT, PAZHOOR KARA,
 WP(C).5380/2021, WP(C).5323/2021, WP(C).5431/2021
                                     2

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

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

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

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

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


               IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                 PRESENT

               THE HONOURABLE MR. JUSTICE SUNIL THOMAS

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

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


PETITIONER:

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

               BY ADV. SRI.VARGHESE C.KURIAKOSE

RESPONDENTS:

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

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

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

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

      5        SILVY MATHEW,
               W/O. JAMES,
               PULIKKAL HOUSE,
               PAZHOOR KARA, PIRAVOM VILLAGE,
 WP(C).5380/2021, WP(C).5323/2021, WP(C).5431/2021
                                     4

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

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

      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.

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

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

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


               IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                 PRESENT

               THE HONOURABLE MR. JUSTICE SUNIL THOMAS

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

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


PETITIONER:

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

               BY ADV. SRI.VARGHESE C.KURIAKOSE

RESPONDENTS:

      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,
 WP(C).5380/2021, WP(C).5323/2021, WP(C).5431/2021
                                     6

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

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

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

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

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

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



                              JUDGMENT

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

Dated this the 2nd day of March 2021

The Writ Petitioner who is common petitioner in

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 3rd respondent after safeguarding

the interest of the petitioner before conducting sale.

2. The learned standing counsel for the WP(C).5380/2021, WP(C).5323/2021, WP(C).5431/2021

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 Co-

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

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.

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.

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

Sd/-

SUNIL THOMAS JUDGE RMV/02/03/2021 WP(C).5380/2021, WP(C).5323/2021, WP(C).5431/2021

APPENDIX OF WP(C) 5380/2021 PETITIONER'S EXHIBITS:

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.

RESPONDENT'S EXHIBITS:NIL

RMV/02/03 //TRUE COPY// PA TO JUDGE WP(C).5380/2021, WP(C).5323/2021, WP(C).5431/2021

APPENDIX OF WP(C) 5323/2021 PETITIONER'S EXHIBITS:

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.

RESPONDENT'S EXHIBITS:NIL

RMV/02/03 //TRUE COPY// PA TO JUDGE WP(C).5380/2021, WP(C).5323/2021, WP(C).5431/2021

APPENDIX OF WP(C) 5431/2021 PETITIONER'S EXHIBITS:

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.

RESPONDENT'S EXHIBITS:NIL

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