Rekha Suresh vs Mini Reji
2021 Latest Caselaw 22120 Ker

             IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                PRESENT
            THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
                                   &
               THE HONOURABLE MRS. JUSTICE C.S. SUDHA
    FRIDAY, THE 5TH DAY OF NOVEMBER 2021 / 14TH KARTHIKA, 1943
                            WA NO. 11 OF 2019
 AGAINST THE JUDGMENT IN WP(C) 13801/2008 DATED 12.10.2017 OF HIGH
                             COURT OF KERALA
APPELLANT/5th RESPONDENT:

           REKHA SURESH,
           AGED 42 YEARS,
           W/O. P.G.SURESH, PERUMPILLIL (SURIANKUNNU PARAYIL)
           HOUSE, KANJIRAMATTOM KARA,THODUPUZHA EAST P.O.,
           IDUKKI DISTRICT-685 585.

           BY ADV G.SREEKUMAR (CHELUR)



RESPONDENTS/PETITIONER & RESPONDENTS 1 TO 4 AND 6 TO 8:

     1     MINI REJI,
           AGED 38 YEARS,
           D/O.SHANMUGHAN ACHARI, PERUMPILLIL HOUSE,
           KANJIRAMATTOM KARA,THODUPUZHA VILLAGE,
           IDUKKI DISTRICT-685 585.

     2     THE STATE OF KERALA,
           REPRESENTED BY THE SECRETARY TO THE GOVERNMENT,
           CORPORATION DEPARTMENT, SECRETARIAT,
           THIRUVANANTHAPURAM-695001.

     3     THE ASSISTANT REGISTRAR(GENERAL),
           OFFICE OF THE CO-OPERATIVE SOCIETIES, THODUPUZHA,
           IDUKKI DISTRICT-685585.

     4     THE SPECIAL SALE OFFICERS,
           THODUPUZHA URBAN CO OPERATIVE BANK, GROUP,
           OFFICE OF THE CO OPERATIVE ASSISTANT REGISTRAR,
                                     2
Writ Appeal No.11 of 2019

              (GENERAL), THODUPUZHA, IDUKKI DISTRICT-685 585.

      5       P.G.SURESH,
              AGED 48 YEARS,
              S/O. GOPALANACHARI, PERUMPILLIL (SURIANKUNNU PURAYIL)
              HOUSE, KANJIRAMATTOM KARA,THODUPUZHA EAST P.O.,
              IDUKKI DISTRICT-685 585.

      6       SUB REGISTRAR,
              SUB REGISTRAR'S OFFICE, THODUPUZHA-685 585.

      7       REGISTRAR OF CO OPERATIVE SOCIETIES,
              THIRUVANANTHAPURAM-695001.

      8       THE THODUPUZHA URBAN CO OPERATIVE BANK NO.394,
              HEAD OFFICE, THODUPUZHA TOWN, IDUKKI DISTRICT,
              REPRESENTED BY ITS SECRETARY-685 585.

              OTHER PRESENT
              SRI.T.K.VIPIN DAS, SENIOR GOVERNMENT PLEADER

       THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 25.10.2021,
THE COURT ON 05.11.2021 DELIVERED THE FOLLOWING:
                                        3
Writ Appeal No.11 of 2019

                Dated this the 5 th day of November, 2021

                             JUDGMENT

C.S.SUDHA, J.

This writ appeal is filed seeking the setting aside of the judgment

in W.P.(C)No.13801/2008 dated 12/10/2017.

2. The fifth respondent in the writ petition is the appellant

herein. The writ petition was filed by the first respondent herein assailing

the auction sale conducted by the third respondent (fourth respondent

herein), in which proceedings, the appellant was the auction purchaser.

The auction sale was in respect of land jointly owned by the appellant and

the fifth respondent herein (the fourth respondent in the writ petition),

who is none other than the husband of the appellant herein. Unless the

context otherwise requires, the parties will be referred to as described in

the writ petition.

3. The brief facts are as follows: -

The writ petitioner and the fourth respondent are the children of

Writ Appeal No.11 of 2019

brothers - M/s. Shanmughamachary and Gopalanachary. The grandmother

of the petitioner and the fourth respondent executed a settlement deed in

the year 1997 whereby they were given joint ownership of land comprised

in Sy. No.252/1/1 having an extent of 14 ¾ cents of property with a

residential building situated therein, in Thodupuzha village. The property

is co-habited by the fourth respondent, along with his wife - the fifth

respondent (the appellant herein). The first respondent is residing with her

parents about a kilometer away from the said property.

4. In the writ petition, it was contended by the petitioner that the

fourth respondent herein approached her and requested that the property

jointly owned by them be mortgaged with the eighth respondent bank for

availing a loan of ₹50,000/-. As the fourth respondent assured that he

would repay the loan amount without any default, the petitioner acceded

to the request and signed all the necessary documents with respect to the

loan transaction. However, contrary to the assurance given, the fourth

respondent defaulted repayment of the loan. As a result, the bank initiated

proceedings against him which ultimately resulted in the mortgaged

Writ Appeal No.11 of 2019

property jointly owned by him and the petitioner being sold in auction,

and the same was purchased by the fifth respondent.

5. According to the petitioner, she had never received any notice

from the bank. She alleged that the fourth and fifth respondents colluded

with the third respondent in the writ petition - the Special Sales Officer of

the bank, and the property was sold for a meagre sum of ₹25,031/- to

none other than the defaulter's wife - the fifth respondent. Alleging fraud

and irregularity, the petitioner unsuccessfully moved the respondent

authorities, vide Exts.P5 & P6 for setting aside the sale. Thereafter, she

filed a suit for declaration in respect of her share, before the Munsiff

Court which came to be dismissed as not maintainable. The petitioner was

unsuccessful when she again approached the respondent authorities vide

Exts.P7 & P8 for setting aside the sale. Hence, she preferred the writ

petition before this Court.

6. The learned Single Judge accepted the contentions of the

petitioner and set aside the sale as far as the share of the petitioner in the

auction was concerned. The learned Single Judge also directed the Police

Writ Appeal No.11 of 2019

to register an FIR and to conduct an investigation relating to the fraud and

cheating committed in the matter of sale and to take the investigation to its

logical conclusion untrammeled by any observations in the judgment. The

final report was directed to be filed within a period of three months. It was

also made clear that it is for the police to find out who the real culprits are.

Further, costs to the tune of ₹50,000/- was directed to be paid to the first

respondent herein within a period of two months.

7. According to the learned counsel for the appellant, there is no

proper plea of fraud as contemplated under Order VI Rule 4 CPC.

However, the learned single Judge in the absence of proper plea took upon

the duty of finding fault with the appellant herein. The learned Judge went

beyond the scope of writ jurisdiction in directing the police to register a

crime. Such a relief was never sought for by the petitioner. It is also

submitted that there is no law which precludes or bars the defaulter's wife

from bidding in the auction and merely because the wife is the auction

purchaser, fraud cannot be read into it.

8. Paragraph 9 of the impugned order discusses the aspect of

Writ Appeal No.11 of 2019

fraud seen to have been committed in the case. The learned single judge

noticed that the very fact that the entire extent of 14 and odd cents of

property was purchased by the fifth respondent/appellant for a meagre

sum of ₹25,031/- for discharging the liability of ₹25,000/- of her husband

was indicative of the fraudulent intention of the parties. The learned judge

found that all the notices relating to the sale and subsequent proceedings

had been received by the fifth respondent. In fact, all the notices relating

to the arbitration proceedings had been received by the fifth respondent on

behalf of the petitioner, which would show the deceitful mind of the

husband-and-wife duo of the fourth and fifth respondents. It was held that

had the fifth respondent any genuine interest in discharging the liability

of her husband, she would have discharged the liability instead of

purchasing the entire property including the share of the petitioner. Even

assuming that she wanted to have a share in the property for the money

she expended, she ought to have purchased the share of her husband

which is worth only 50% i.e., ₹25,000/-, the amount due to the bank. The

learned single Judge also held that the explanation given by the fifth

Writ Appeal No.11 of 2019

respondent that her mother had advanced the money to purchase the

property in the auction, could never be believed as all the other aspects

involved in the matter clearly indicated her deceitful mind in this regard.

It was held that right from the beginning of the institution of the

Arbitration suit itself, the fifth respondent had entertained a deceitful mind

to defeat the interest of the petitioner, and hence the reason why she had

received the entire notices in the proceedings. The fifth respondent has no

case that she was authorized to receive the same. Further more the fifth

respondent has no source of income. In addition to this the learned single

judge also noticed that half of the liability had been discharged by her

own husband, and so the possibility of the amount for purchase of the

property being advanced by her husband to get the entire property in her

name could also not be ruled out. From all these aspects, the learned

single Judge concluded that when fraud was patent from the record itself,

the court need not hesitate to interfere in such a matter, especially when

fraud is perpetuated on public officials and so held that the sale in respect

of the share of the first respondent is vitiated by fraud.

Writ Appeal No.11 of 2019

. 9. Admittedly, the petitioner is the co-owner of the property. The

learned single Judge observes that the petitioner was the surety in the loan

transaction whereas the case of the fifth respondent/appellant and the

eight-respondent bank is that the loan was jointly availed by the fourth

respondent and the petitioner. It is true that the petitioner has admitted that

she had initially received a notice in the arbitration proceedings initiated

by the bank. However, on the assurance given by the fourth respondent

that he would pay off the loan, the petitioner says that she did not pursue

the matter. Thereafter, she never received any notice relating to the

auction or the proceedings of the eighth respondent bank in the

confirmation of sale in favour of the fifth respondent/appellant herein.

This is admitted by the eighth respondent bank in their counter to the writ

petition, wherein it is stated that notices were served on the fourth

respondent and his wife - the fifth respondent and never on the petitioner,

as the former are the close relatives of the latter. The provision of law

which permits such a procedure to be adopted by the eighth respondent

bank is not clear. The counter of the fifth respondent in the writ petition is

Writ Appeal No.11 of 2019

also silent as to how, why and in what capacity the notices relating to the

auction and subsequent proceedings were received by the fifth respondent.

The fifth respondent/appellant has no case that she was authorized to

receive the notice(s) or that after receiving the notice on behalf of the

petitioner, she had informed the latter about the contents of the notice. The

argument that the provisions of Order VI Rule 4 CPC have not been

complied with also, cannot be countenanced as the provisions of the Civil

Procedure Code are not applicable in writ proceedings.

10. In the light of the aforesaid circumstances, we find no

infirmity in the findings of the learned single Judge relating to fraud and

so fully agree with the same.

11. Having regard to the totality of the facts and circumstances

of the case, especially the fact that the parties involved are close relatives,

we are of the view that the direction issued by the learned single Judge to

the Police to register a case and conduct an investigation in respect of the

transaction which led to the sale of the property needs to be modified to

the extent giving liberty to the writ petitioner to set the criminal law in

Writ Appeal No.11 of 2019

motion by approaching the police if she is so advised or desires.

12. Both sides advanced their respective arguments on the

aspect of costs also. We are not impressed by the arguments advanced by

the learned counsel for the appellant seeking the setting aside of the order

relating to costs and so refrain from doing so.

In the light of the above discussion, the writ appeal is partly

allowed. The impugned order to the extent to which it directs the police to

register a crime is set aside. However, we make it clear that the writ

petitioner is at liberty to set the criminal law in motion by approaching the

police if she so desires or if she so advised. No order as to costs.

Pending interlocutory applications, if any stand disposed of.

Sd/-

P.B.SURESH KUMAR, JUDGE

Sd/-

C.S.SUDHA, JUDGE ami/