Kerala High Court
Thachan Parvathy vs District Collector on 19 November, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS
FRIDAY, THE 19TH DAY OF NOVEMBER 2021 / 28TH KARTHIKA, 1943
WP(C) NO. 623 OF 2018
PETITIONER:
THACHAN PARVATHY
AGED 79 YEARS, W/O. BASKARAN,
UTHRADAM,
KAVUMBHAGAM,BAVACHIMUKKU,
THALASSERY, KANNUR DISTRICT-670642.
BY ADVS.
SRI.SUNIL V.MOHAMMED
SMT.P.REEJA
RESPONDENTS:
1 DISTRICT COLLECTOR
COLLECTORATE, KANNUR-670001.
2 THE SUB-INSPECTOR OF POLICE
THALASSERY POLICE STATION,
KANNUR DISTRICT-670101.
3 THE AUTHORIZED OFFICER
CORPORATION BANK, ZONAL OFFICE,
2ND FLOOR, PUKALAKATTU BUILDING,
THAMMANAM ROAD, PALARIVATTOM,
KOCHI-682017.
4 THE MANAGER
CORPORATION BANK, VADAKARA,
KOZHIKODE DISTRICT-673101.
5 ASHOKAN K.
S/O. BALAN,
BABY NIVAS,
PALAYAD P.O.,THALASSERY,
W.P.(C) No.623/18
-:2:-
KANNUR DISTRICT-670661.
6 SHANAVAS KELOTH
S/O. LATE SEETHY,
KELOTH HOUSE, PURAKKAD P.O.,
THIKKODI, KOYILANDY,
KOZHIKODE DISTRICT-673522.
7 SHAMNA SHANAVAS
W/O. SHANAVAS,
KELOTH HOUSE,
PURAKKAD P.O., THIKKODI,
KOYILANDY, KOZHIKODE DISTRICT-673522.
8 THE SUB-REGISTRAR OFFICER
SUB-REGISTRAR OFFICE,THALASSERY,
KANNUR DISTRICT-670104.
*9 ALTHAF ALI
S/O KHALID,
MEETHALANGATH,
VADAKKAYIL HOUSE,
S.S ROAD, CHIRAKKARA POST,
THALASSERY, KANNUR-670104.
*(ADDL.R9 IMPLEADED AS PER ORDER DATED 31/10/2018
IN IA No.03/2018)
BY ADVS.
SRI.S.B.PREMACHANDRA PRABHU, SC, CORPORATION
BANK,
SMT.K.PUSHPAVATHI
SMT.SABEENA P.ISMAIL, GOVT. PLEADER
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 03.11.2021, THE COURT ON 19.11.2021 DELIVERED THE
FOLLOWING:
W.P.(C) No.623/18
-:3:-
BECHU KURIAN THOMAS, J.
-----------------------------------------
W.P.(C) No.623 of 2018
----------------------------------------
Dated this the 19th day of November, 2021
JUDGMENT
Petitioner alleges that her property was the subject matter of a
sale pursuant to an auction notice dated 27.10.2017. She alleges
fraud in the transfer of property allegedly done in 2014. Petitioner
challenges the auction sale notice on the pleading that she had
never sold her property to the 6th respondent nor had she ever
received any consideration for the alleged sale.
2. A security interest was created with the 4 th respondent over
a property alleged to be owned by the 6 th respondent. When default
was committed in the repayment of loan for which the security
interest was created, bank initiated proceedings under the
Securitisation and Reconstruction of Financial Assets and
Enforcement of Security Interest Act, 2002 (for short 'the Act') in
2016. As mentioned earlier, proceedings under the Act for
enforcement of the security interest has instigated the petitioner to
challenge the proceedings for sale of the property.
W.P.(C) No.623/18
3. Petitioner claims to be a scheduled caste. She alleges that
she was the owner of the property over which the above mentioned
security interest was created. According to the petitioner, fraudulent
documents were created by the 5th respondent, under the guise of
executing a power-of-attorney, created sale deed without her
knowledge. Completely oblivious of what transpired, petitioner
pleads that in 2016 on noticing the affixture of a possession notice
exhibited on her property, she enquired about the same and was
informed that respondents 5 and 6 had availed a huge loan from the
bank mortgaging the property and that since default was committed
in repayment, bank was proceeding to enforce the security interest.
On further enquiry, petitioner learnt that a sale deed was allegedly
executed in her name on 08.10.2014 transferring her property to 6 th
respondent.
4. Petitioner rushed to the Legal Services Authority,
Thalassery by filing PLP No.2533 of 2016 and sought to cancel the
sale deed purported to have been executed by her in favour of the
6th respondent and to lift the charge on the property. Though a
complaint was filed before the 2 nd respondent on 27.03.2017, no
actions were initiated due to the influence wielded by the
W.P.(C) No.623/18
respondents. Petitioner further averred that left with no remedy, she
approached the National Commission for Scheduled Castes, which
initiated proceedings on the basis of a compliant. According to the
petitioner, an intimation dated 30.08.2017 was issued on behalf of
the District Collector, Kannur to the National Commission for
Scheduled Castes informed that details have been sought for from
the Tahsildar regarding the allegations.
5. While the aforesaid proceedings were continuing, petitioner
came across notices proposing an e-auction of her property which
compelled her to approach this Court through this writ petition.
Petitioner thus seeks to quash the sale notice dated 27.10.2017,
which is produced as Ext.P6, and further seeks for action to be
initiated pursuant to her complaint to the police as well as the
National Commission for Scheduled Castes. A further direction is
also sought to restrain the bank from proceeding under the Act
against the property, alleged to be owned by the petitioner.
6. In the counter affidavit filed by the 1 st respondent it was
stated that, pursuant to the complaint of the petitioner before the
National Commission for Scheduled Castes, an enquiry was
conducted and by communication dated 23.10.2017 it was informed
W.P.(C) No.623/18
to the District Police Chief, Kannur that the enquiry revealed that the
allegation made by the petitioner was true and that proceedings
under the Scheduled Castes and the Scheduled Tribes (Prevention
of Atrocities) Act, 1989 must be initiated. A report was also said to
have been furnished to the National Commission on 26.10.2017.
7. The 9th respondent, who is the auction purchaser, has
impleaded himself as per order dated 31.10.2018. In the affidavit
supporting the impleading petition it was stated that, the property in
question was purchased by him in an auction conducted by the bank
and sale certificate was issued to him on 17.01.2018. He contended
that the property was purchased by him for a sum of Rs.61,10,000/-
through an e-auction carried out under the provisions of the Act and
further that, the sale certificate was registered at the Sub Registrar's
Office, Thalassery.
8. It is noticed that, while the writ petition was pending,
petitioner filed I.A No.2432 of 2018 on 03.02.2018 producing copy of
the sale certificate dated 17.01.2018 bearing No.82/1/2018. Though
the said sale certificate was produced by the petitioner as early as
on 03.02.2018, till the date of final hearing, no application for any
relief based upon the sale certificate was sought for by the petitioner.
W.P.(C) No.623/18
9. I have heard Adv.Sunil V. Mohammed, learned counsel for
the petitioner, Adv.Sabeena P. Ismail, learned Government Pleader
for respondents 1, 2 and 8, Sri.S.B.Premachandra Prabhu, learned
Standing Counsel for respondents 3 and 4 and Adv.Pushpavathi K.,
learned counsel for the additional 9th respondent.
10. Though this writ petition was filed on 08.01.2018, no
interim orders were granted by this Court till the date of final hearing.
A perusal of the reliefs claimed for shows that, though the petitioner
became aware abut the proceedings initiated under the Act in 2016,
except for challenging the sale notice, no proceedings have been
initiated for setting aside the sale alleged to have been executed by
the petitioner in favour of the 6th respondent.
11. The learned counsel for respondents 3 and 4 submitted
that loan was availed by respondents 6 and 7 in 2014 itself after
furnishing sale deed No.1710/2014. It was further submitted that the
sale executed by the petitioner was in fact preceded by an
agreement for sale and that when the loan account fell in arrears, it
was declared as a non-performing asset in the year 2015, physical
possession was taken on 19.08.2017 and the sale was conducted on
11.12.2017. Respondents further submitted that since no
W.P.(C) No.623/18
proceedings have been initiated by the petitioner before the proper
forum seeking to set aside the original sale or even the subsequent
auction purchase,it may not be proper for this Court to interfere at
this belated stage.
12. Once a document of sale is registered, it carries with it
rights that accrue to the registered owner. If there are disputes
against execution of sale deed, the remedy of the aggrieved is to
move the appropriate forum for appropriate reliefs. Whether a sale
is executed fraudulently or not and whether the sale is required to be
set aside or not are all disputed facts which this Court in exercise of
the powers under Article 226 of the Constitution of India may not be
able to adjudicate.
13. As a matter of fact, a relief to set aside the sale is glaringly
absent. The reliefs sought for in the writ petition are as follows:-
"(i) Call for the records leading to Ext.P6 and to quash the same
by issuing a writ of certiorari or any other writ, order or direction;
(ii) Issue a writ of mandamus or any other appropriate writ, order
or direction directing the 1 st respondent to facilitate the proceedings
based on Ext.P4, within a time limit.
(iii) Issue a writ of mandamus or any other appropriate writ, order
or direction, directing the 2nd respondent to take action based on
Ext.P3, forthwith.
(iv) Issue a writ of mandamus or any other appropriate writ, order or
direction directing the respondents 3 and 4 to refrain from further
proceedings under the SARFAESI Act, 2002 against the petitioner's
property measuring 6.84 Ares contained in R.S. No.185 of
Thiruvangad Village in Thalasserry Municipality, until the finalization
W.P.(C) No.623/18
of the proceedings before the National Commission for Scheduled
Castes and the 2nd respondent."
14. In the absence of a relief to set aside the sale held on
17.01.2018, the contention of the petitioner are of no avail to her.
15. The execution of the loan agreement and the consequent
creation of security interest and its enforcement are not matters that
can be questioned by the petitioner. A mere statement of the
petitioner that she was deprived of the ownership of a property by
fraudulent means by itself is not sufficient for this Court to exercise
the extraordinary remedy under Article 226 of the Constitution of
India, especially when the subsequent events like creation of
security interest, enforcement of the sale by legal recourse, auction
held thereafter and the registration of the sale deed have all been
effected in the meantime.
16. Reliance upon Ext.R1(a) letter issued by the Deputy
Collector cannot advance the case of the petitioner. The said letter
merely states that the matters stated in the petitioner are true and
has directed the District Police Chief to register a crime under the
provisions of the Scheduled Castes and the Scheduled Tribes
(Prevention of Atrocities) Act, 1989. What is the nature of enquiry
W.P.(C) No.623/18
conducted, what was the allegation in the complaint are not revealed
from the letter dated 23.10.2017. Even otherwise, the aforesaid
observation or letter is not sufficient to contend that the sale notice
issued by the 3rd respondent is liable to be set aside.
17. The reliefs claimed as (ii) and (iii) are also of no avail to
the petitioner. The proceedings in Ext.P4 has culminated in
Ext.R1(a) while no purpose will be achieved by directing any action
to be taken pursuant to Ext.P3 as a sale deed is apparently executed
in 2014 which has been followed by an auction sale in 2018 in favour
of the additional 9th respondent. Further, in view of the culmination of
SARFAESI proceedings in Ext.P7 sale, on 17.01.2018, relief No.(iv)
has become infructuous.
In view of the aforesaid deliberations, this Court is of the
opinion that petitioner cannot succeed in this writ petition and the
same is only to be dismissed. Accordingly, this writ petition is
dismissed, however without prejudice to the right of the petitioner, if
any, available in accordance with law, before the appropriate forum.
Sd/-
BECHU KURIAN THOMAS
JUDGE
vps
W.P.(C) No.623/18
APPENDIX OF WP(C) 623/2018
PETITIONER'S/S' EXHIBITS
EXHIBIT P1 TRUE COPY OF THE WILL NO. 40/1993 OF
SRO, THALASSERY.
EXHIBIT P2 TRUE COPY OF THE PRE-LITIGATION PETITION
NO. 2533/2016 FILED BEFORE THE KANNUR
DISTRICT LEGAL SERVICE AUTHORITY,
THALASSERY.
EXHIBIT P3 TRUE COPY OF THE ACKNOWLEDGEMENT RECEIPT
OF PETITION DATED 27.03.2017 ISSUED BY
THALASSERY POLICE STATION.
EXHIBIT P4 TRUE COPY OF THE INTIMATION DATED
11.09.2017 OF THE NATIONAL COMMISSION
FOR SCHEDULED CASTES ALONG WITH REPORT
OF THE 1ST RESPONDENT.
EXHIBIT P5 TRUE COPY OF THE REPRESENTATION
SUBMITTED BY THE PETITIONER BEFORE THE
3RD RESPONDENT.
EXHIBIT P6 TRUE COPY OF THE SALE NOTICE DATED
27.10.2017 ISSUED BY THE 3RD RESPONDENT.
EXHIBIT P7 CERTIFIED COPY OF THE SALE CERTIFICATE
REGISTERED AT THE SRO, THALASSERY ON
17.01.2018 AS NO.82/1/2018
EXHIBIT P8 TRUE COPY OF THE PHOTOGRAPHS OF THE HIGH
HANDED ACTIVITIES IN THE PROPERTY.
EXHIBIT P9 TRUE COPY OF THE PHOTOGRAPHS SHOWING THE
PRESENT STATUS OF THE PROPERTY.
EXHIBIT P10 TRUE COPY OF THE PHOTOGRAPHS SHOWING THE
CONSTRUCTION WORKS DONE IN THE PROPERTY.
W.P.(C) No.623/18
RESPONDENT'S/S' EXHIBITS
EXHIBIT R1(a) PHOTOSTAT COPY OF THE DIRECTION DATED
23.10.2017 FROM THE FIRST RESPONDENT TO
DISTRICT POLICE CHIEF, KANNUR
EXHIBIT R1(b) PHOTOSTAT COPY OF THE LETTER DATED
26.10.2017 FROM FIRST RESPONDENT TO
NATIONAL COMMISSION FOR SCHEDULED CASTES
EXHIBIT R9(a) TRUE COPY OF THE SALE CERTIFICATE DATED
17.1.2018 ISSUED BY THE 3RD RESPONDENT
