Kerala High Court
C.B.Sushama vs B.Mohanan on 10 August, 2022
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
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
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
"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
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
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
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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