P. M. Kelukutty vs Represented By Its Authorised ...
2022 Latest Caselaw 4795 Ker

                    IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                    PRESENT

                    THE HONOURABLE MR.JUSTICE BASANT BALAJI

            FRIDAY, THE 29TH DAY OF APRIL 2022 / 9TH VAISAKHA, 1944

                             OP(C) NO. 786 OF 2022

             IN MC 177/2017 OF CHIEF JUDICIAL MAGISTRATE, KOZHIKODE

PETITIONERS/RESPONDENT NOS.3 & 4 AND 13 IN THE MC:

     1       P. M. KELUKUTTY
             AGED 82 YEARS
             6/875 G
             YMCA INTERNATIONAL CULTURAL COMPLEX
             YMCA CROSS ROAD CALICUT, PIN - 673001
     2       P. M. KELUKUTTY & BROTHERS
             REPRESENTED BY MANAGING PARTNER P. M. KELUKUTTY
             6/875 N
             YMCA INTERNATIONAL CULTURAL COMPLEX
             YMCA CROSS ROAD CALICUT, PIN - 673001
     3       GOPALAKRISHNAN @ UNNI
             AGED 75 YEARS
             6/875 F
             YMCA INTERNATIONAL CULTURAL COMPLEX
             YMCA CROSS ROAD
             CALICUT, PIN - 673001
             BY ADVS.
             SHILPA SATHISH
             JOSE JONES JOSEPH
             INDRAJITH S KAIMAL
             A.SUDHI VASUDEVAN (SR.)


RESPONDENTS/PETITIONER IN MC/RESPONDENTS NOS.1 AND 14 IN MC:

     1       PUNJAB NATI0ONAL BANK LTD.,
             REPRESENTED BY ITS AUTHORISED OFFICER AND CHIEF MANAGER
             (FORMERLY, THE UNITED BANK OF INDIA)
             C/940, SAIKEN CHAMBERS, KANNUR ROAD, KOZHIKODE,PIN - 673001
     2       YOUNG MEN'S CHRISTIAN ASSOCIATION
             REPRESENTED BY ITS SECRETARY
             YMCA CROSS ROAD CALICUT
             KALATHINKUNNU AMSOM DESOM
             KOZHIKODE, PIN - 673001
     3       M/S.THREE LINE PROPERTIES
             REPRESENTED BY ITS MANAGING PARTNER SHRI. ABDUL LATHIEF
             DOOR NO. OP7/813
             OMASSERY PANCHAYAT
             KOZHIKODE, PIN - 673572
             BY ADV. MOHAMMED NAVAS
             BY ADV. S.EASWARAN

      THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 29.04.2022,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 O.P.(C) No.786 OF 2022

                                         2




                                 JUDGMENT

Dated this the 29th day of April, 2022

This O.P.(C) is filed under Article 226 and 227

of the Constitution of India for a direction for the

following reliefs:

"(i) Direct the Chief Judicial Magistrate Court Kozhikode to issue within a period to be fixed by this Hon'ble Court the certified copy of the order dated 23.04.2022 passed in MC 177/2017 sought for as per Ext.P7.

(ii) Direct Chief Judicial Magistrate Court, Kozhikode to keep in abeyance the implementation of the order dated 2304.2022 passed in MC 177/2017 by the Chief Judicial Magistrate till the certified coy of the order dated 23.04.2022 passed in MC 177/2017 is issued pursuant to Ext.P7 and for a further period of one week."

2. Petitioners are the tenants under the 2nd

respondent in respect of three shop rooms in the YMCA

International Cultural Complex, Kozhikode. The 2 nd

respondent defaulted payment of loan availed from the

United Bank of India, which stood amalgamated with

the Punjab National Bank thereafter. As the public sale

of the mortgaged properties did not fructify, the creditor O.P.(C) No.786 OF 2022

bank allowed the borrower to enter into an agreement

for sale dated 06.11.2009 with the original purchaser

one Sri.Ahammed Koya under whom the 3 rd respondent

claims right in the property. Exhibit P1 agreement had

been executed on 06.11.2009 regarding the sale of the

property.

3. Since there was a delay in proceeding with

the taking up of possession on the petitioners herein,

the 3rd respondent herein moved this Court by filing

W.P.(C) No.29910 of 2021 complaining that despite the

lapse of almost a decade, the fruits of its purchase

have not been received by in full and sought for a

direction to dispose of M.C.No.177 of 2017 pending

before the Chief Judicial Magistrate, Kozhikode. Though

the writ petition was contested hotly by the petitioners

along with other tenants, a learned Single Judge of this

Court by judgment dated 28.03.2022, directed the Chief

Judicial Magistrate, Kozhikode to dispose of M.C.No.177

of 2017 as expeditiously as possible, in a time bound

manner at any rate within a period of one month from

the date of receipt of a copy of this judgment. The said O.P.(C) No.786 OF 2022

judgment was challenged in W.A. No.519 of 2022, the

Division Bench wherein I was a party, dismissed the

same on 22.04.2022 with the following observations:

"Undisputedly, no interim order has been passed by the Hon'ble Supreme Court in the review petitions interdicting further proceedings initiated under the Act. The Special Leave Petitions were dismissed by the Hon'ble Supreme Court on 11.2.2022. As rightly observed by the learned Single Judge, the mere filing of review petitions is not a ground to stall the culmination of the proceedings initiated under the Act. The proper course for the appellants is to move the Hon'ble Supreme Court and seek a stay of further proceedings under the Act. It would be a travesty of justice to keep the 3rd respondent - a beneficiary of the sale held more 12 years back - waiting for the final disposal of the review petitions. We do not find any error or illegality in the impugned judgment passed by the learned Single Judge directing the Magistrate Court to dispose of MC 177/2017 in a time bound manner,which would only secure the ends of justice."

4. In the meanwhile, on receipt of the judgment

in W.P.(C) No.29910 of 2021, the learned Magistrate on

18.4.2022 passed the following order:

"Advanced suo moto on the basis of direction issued by the Hon'ble High Court in Writ Petition No.29910/21 for disposal of the MC within one month. Hence, advanced for considering the CMP O.P.(C) No.786 OF 2022

459/21. Issue notice to the parties on both sides in CMP 459/21. For hearing. Call on 21.4.2022."

On 21.4.2022, the second order was passed, which

reads as follows:

"Petitioner and respondent represented. Heard CMP 459/21 allowed. VSO. Petitioner is directed to complete the amendment within one day in the cause title in presence of CMO. Adjourned to 23.4.2022."

After the dismissal of the writ appeal, the

Magistrate on 23.04.2022 passed the following order:

"Petitioner represented and submitted that amendment in the case title is corrected out. The petitioner also produced the power of attorney showing the authority of the present petition represent or the PNB to take possession of the secured asset. The respondents 2 to 14 represented and seek time for two months as there is review petition pending before the Hon'ble Supreme Court. There is a direction from the Hon'ble High Court to dispose this MC within one month from the date of receipt of the order 29910/2021 dated 28.03.2022. The order was received by this Court on 18.04.2022. Hence the advocate commissioner Adv.Reena Sukumaran who was appointed as per order dated 18.08.2015 in CMP 2087/2013 directed to execute the order passed in terms of common order in CMP 2087/2013 and CMP 1460/2015 within a week with O.P.(C) No.786 OF 2022

the assistance of SHO Nadakkavu and file CR. Adjourned to 30.04.2022."

5. As per Exhibit P6, the Advocate Commissioner

was directed to execute the order passed in C.M.P.

No.2087 of 2013 and C.M.P. 1460 of 2015 within a week

with the assistance of S.H.O., Nadakkavu and the same

was adjourned to 30.04.2022. At this point of time, the

petitioners have filed this O.P.(C) complaining that the

certified copy of the order dated 23.04.2022 passed in

M.C. No.177 of 2017 was not issued and sought for a

direction. This Court by order dated 26.04.2022, issued

notice by special messenger to the respondents and the

Chief Judicial Magistrate, Kozhikode was directed to

issue certified copy of the order before 28.04.2022. Till

that time an interim order was also passed directing that

any steps taken pursuant to the impugned order shall be

subsequent to the result of the original petition.

6. Heard the learned Senior Counsel Sri.Sudhi

Vasudevan as well as the learned Standing Counsel Sri.

Mohammed Navas appearing for the 1 st respondent and

Sri.S.Easwaran, learned counsel appearing for the 3 rd O.P.(C) No.786 OF 2022

respondent.

7. The learned Senior Counsel appearing for the

petitioners submits that the order dated 23.04.2022

directs the execution of the order passed in terms of the

order in C.M.P. No.2087 of 2013 and C.M.P. No.1460 of

2015. The Advocate Commissioner has come to the

property to take possession today and if they are

dispossessed, the petitioners' valuable rights will be

affected. He submits that the review petitions filed

against the order in S.L.P. No.11655 of 2020 and

connected cases, are pending before the Apex Court and

the same will be considered in the near future.

Moreover, challenging the judgment of the Division

Bench in W.A.No.519 of 2022, he has already moved the

apex Court and the same is also coming for admission

next week. He prays that this Court may grant him one

week time from dispossession, so that he may get a

breathing time to challenge the orders passed by the

Magistrate or get favourable orders from the Apex Court.

8. Learned counsel appearing for the 3 rd

respondent submits that all the contentions raised by O.P.(C) No.786 OF 2022

the petitioners have been concluded by various

judgments of this Court as well as the Hon'ble Supreme

Court and it is only to avoid dispossession and to

overcome the orders passed by this Court in W.P.(C)

No.29910 of 2021 and W.A.No.519 of 2022, this O.P(C) is

filed which is not maintainable.

9. It is an admitted fact that the 3 rd respondent

herein, has entered into agreement Exhibit P1 on

06.11.2009 to purchase the building in issue known as

YMCA International Cultural Complex, Kozhikode, having

an extent of 56.44 cents of land for a total consideration

of Rs.9 Crores Only. It was the delay in finalization of the

proceedings in getting possession of the building, the 3 rd

respondent has moved this Court by filing Writ Petition

No.29910 of 2021. This Court by judgment dated

28.03.2022 considered all the aspects of the case and

contentions raised by the tenants and held that there is

no merits in the contentions raised by them and the

petitioner beneficiary who has purchased the building in

the year 2009, is entitled for possession of the property.

Accordingly, the direction was issued. The said O.P.(C) No.786 OF 2022

judgment was confirmed in the appeal. Be that as it

may, the order of the Magistrate has to be given effect

to. The 3rd respondent having waited for more than ten

years, cannot be blamed for moving this court for a

direction. Question whether the tenants have a right to

hold on possession and challenge Exhibit P6 order is

not gone into by this court. The only question that arise

for consideration is whether the dispossession can be

stayed by this court in the Original Petition under Article

227 of the Constitution of India.

10. The learned Senior Counsel for the petitioners

submits that since the first prayer in O.P(C) has already

become infructuous, he is pressing on the 2 nd prayer

only. The second prayer in the Original Petition is to

direct the learned Chief Judicial Magistrate to keep in

abeyance the implementation of the order dated

23.4.2022 followed in M.C. No.177 of 2017. I am afraid

that the said prayer cannot be allowed, in view of the

judgment passed by this Court in Exhibit P2 and P3.

Moreover, the Division Bench of this Court has already

held that proper cause of the petitioner to move the O.P.(C) No.786 OF 2022

Hon'ble Supreme Court and to seek a stay of the

proceedings under the Act. For these reasons I find that

the Original Petition is devoid of merits and the same is

dismissed.

Sd/-

BASANT BALAJI JUDGE SSK/29/04 O.P.(C) No.786 OF 2022

APPENDIX PETITIONER'S:

Exhibit P1 A TRUE COPY OF THE AGREEMENT OF SALE DATED 06.11.2009 EXECUTED BETWEEN THE 2ND RESPONDENT AND THE ORIGINAL PURCHASER SRI. AHAMMED KOYA Exhibit P2 A TRUE COPY OF THE JUDGMENT DATED 28.03.2022 IN WP(C) 29910/2021 PASSED BY THIS HON'BLE COURT Exhibit P3 A TRUE COPY OF THE JUDGMENT DATED 22.04.2022 OF THIS HON'BLE COURT IN WA NO.519 OF 2022 Exhibit P4 A TRUE COPY OF THE CASE STATUS REFLECTED IN SERVICES.ECOURTS.GOV.IN IN RELATION TO THE PROCEEDINGS HELD ON 18.04.2022 IN MC 177/2017 ON THE FILE OF THE CJM KOZHIKODE ADVANCING THE HEARING TO 21.04.2022 Exhibit P5 A TRUE COPY OF THE CASE STATUS REFLECTED IN SERVICES.ECOURTS.GOV.IN IN RELATION TO THE PROCEEDINGS HELD ON 21.04.2022 IN MC 177/2017 ON THE FILE OF THE CJM KOZHIKODE ALLOWING THE AMENDMENT SOUGHT FOR Exhibit P6 A TRUE COPY OF THE CASE STATUS REFLECTED ON 25.04.2022 IN SERVICES.ECOURTS.GOV.IN IN RELATION TO THE PROCEEDINGS HELD ON 23.04.2022 IN MC 177/2017 ON THE FILE OF THE CJM KOZHIKODE DIRECTING THE ADVOCATE COMMISSIONER APPOINTED TO EXECUTE THE ORDER FOR DISPOSSESSING THE PETITIONERS WITHIN A WEEK WITH THE ASSISTANCE OF SHO NADAKAVU Exhibit P7 A TRUE COPY OF THE COPY APPLICATION DATED 23.04.2022 SUBMITTED BY THE COUNSEL FOR THE PETITIONERS HEREIN AND THE RESPONDENTS IN MC 177/2017 BEFORE THE CHIEF JUDICIAL MAGISTRATE COURT KOZHIKODE

RESPONDENT'S EXHIBITS:NIL

SSK //TRUE COPY// PA TO JUDGE