Kerala High Court
Sini Mole vs Muralidharan M on 28 September, 2022
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE GOPINATH P.
WEDNESDAY, THE 28TH DAY OF SEPTEMBER 2022 / 6TH ASWINA, 1944
OP (DRT) NO. 363 OF 2022
AGAINST THE ORDER/JUDGMENTSA 382/2022 OF DEBT RECOVERY TRIBUNAL,
ERNAKULAM
PETITIONER:
SINI MOLE,
AGED 40 YEARS,
WIFE OF PRADEEP,
ASIRWAD, MUTHATTA PARAMBU,
KUZHALMANNAM POST, ALATHUR TALUK,
PALAKKAD DISTRICT., PIN - 678702
BY ADVS.
SRI.SAJAN VARGHEESE K.
SRI.LIJU. M.P
JOPHY POTHEN KANDANKARY
RESPONDENTS:
1 MURALIDHARAN M,
SON OF MUTHU, PROPRIETOR,
M/S KK TRADERS, SHOP NO. V-677D,
NENMARA POST, PALAKKAD DISTRICT-678508,
RESIDING AT KALLAMKODE KALAM,
NENMARA, CHATHAMANGALAM POST,
PALAKKAD DISTRICT-678508
REP.BY HIS POWER OF ATTORNEY HOLDER
MINI M.V., WIFE OF MURALIDHARAN M,
KALLAMKODE KALAM, NENMARA, CHATHAMANGALAM POST,
PALAKKAD DISTRICT., PIN - 678508
2 MINI M.V.,
WIFE OF MURALIDHARAN M,
KALLAMKODE KALAM,
NENMARA, CHATHAMANGALAM POST,
PALAKKAD DISTRICT, PIN - 678508
3 THE AUTHORISED OFFICER,
SOUTH INDIAN BANK LTD,
DOOR NO.733-2, FIRST FLOOR,
D AND D ARCADE BUILDING,
CHITTUR ROAD, MANAPPULLIKAVU,
KUNNATHURMEDU POST, PALAKKAD., PIN - 678013
OP (DRT) NO. 363 OF 2022 -2-
BY ADVS.
SRI.G.HARIHARAN
SRI.S.EASWARAN
SRI.PRAVEEN.H.(K/1441/2002)
SMT.K.S.SMITHA(K/106/2012)
SRI.M.V.VIPINDAS(K/508/2016)
SRI.V.R.SANJEEV KUMAR(K/000741/2017)
SMT.ANJALY T.A(K/1694/2020)
THIS OP (DEBT RECOVERY TRIBUNAL) HAVING COME UP FOR
ADMISSION ON 28.09.2022, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
OP (DRT) NO. 363 OF 2022 -3-
JUDGMENT
Petitioner has approached this Court being aggrieved
by the fact that the respondent Bank is proceeding against
the property stated to be in the possession of the petitioner
in terms of Exts.P2 and P3 documents, both of which are
dated 06.11.2021.
2. Brief facts show that one M.Muralidharan had
availed credit facilities from the respondent Bank and had
mortgaged the properties in question with the respondent
Bank. It further appears that the petitioner had filed
O.S.No.143 of 2022 before the Munsiff Court, Chittur
seeking an injunction for protection from eviction against
first and second respondents. It is a case of the petitioner
that the petitioner is a total stranger to the borrower in
this case except that she has entered into the agreement
with the borrower in furtherance of a usufructuary
mortgage. It is submitted that Exts.P2 and P3 clearly
indicate that the petitioner came into possession of the
property in question as early as in 2013, that is, before the
mortgage was created in favour of the respondent Bank
and therefore, the petitioner is not to be evicted from the
property in question as he is entitled to protection under
tenancy laws.
3. Adv.S.Easwaran, learned counsel appearing for
the respondent Bank points out that nothing turns on
Exts.P2 and P3 documents, as those have admittedly been
executed after the issuance of notice under Section 13(2)
of the SARFAESI Act. It is submitted that any transfer or
transaction, after issuance of a notice under Section 13(2)
of the SARFAESI Act has been issued, is clearly barred and
refers to the provisions of Section 13(13) in this regard. It
is also submitted that the petitioner is a total stranger and
was not a party to the securitization application before the
Tribunal and she cannot be heard to contend that she must
be permitted to agitate the issue before this Court.
4. Having heard the learned counsel appearing for
the petitioner and the learned counsel appearing for the
respondent Bank I am of the opinion that there is
considerable merit in the stand taken by the learned
counsel appearing for the respondent Bank. The petitioner
is not a party to the loan transaction. The petitioner is also
not a party to the proceedings before the Debts Recovery
Tribunal. The petitioner cannot be aggrieved by any
interim order passed in such proceedings. Further the
right of the petitioner appears to be on the basis of terms
contained in Exts.P2 and P3 documents. These documents
have been executed after the initiation of proceedings by
the Bank under the provisions of the SARFAESI Act though
the documents refer to a transaction from the year 2013.
The petitioner is a stranger to the entire proceedings and
is not and entitled to prosecute the present writ petition.
Petition fails. It is accordingly dismissed. This is,
however, without prejudice to the claims/rights of the
petitioner in Ext.P5 suit.
Sd/-
GOPINATH P.
JUDGE
vv
APPENDIX OF OP (DRT) 363/2022
PETITIONER EXHIBITS
Exhibit P1 TRUE COPY OF THE ORDER DATED 12-08-
2022 PASSED IN IA NO.1640/2022 IN SA
NO.382/2022 ON THE FILE OF DEBTS
RECOVERY TRIBUNAL-I, ERNAKULAM.
Exhibit P2 TRUE COPY OF THE AGREEMENT DATED 06-
11-2021 ENTERED BETWEEN THE FIRST
RESPONDENT AND THE PETITIONER.
Exhibit P3 TRUE COPY OF THE AGREEMENT DATED 06-
11-2021 ENTERED BETWEEN THE PETITIONER
AND THE 2ND RESPONDENT.
Exhibit P4 TRUE COPY OF THE COMMISSION REPORT
FILED IN OS NO.142/2022 ON THE FILE OF
THE MUNSIFF'S COURT, CHITTUR.
Exhibit P5 TRUE COPY OF THE COMMISSION REPORT
FILED IN OS NO.143/2022 ON THE FILE OF
THE MUNSIFF'S COURT, CHITTUR.
Exhibit P6 TRUE CERTIFICATE ISSUED BY THE
AGRICULTURAL OFFICER, AYILUR,
PALAKKAD.
Exhibit P7 TRUE COPY OF THE IMPLEADING PETITION
FILED IN THE SECURITISATION
APPLICATION.
RESPONDENT EXHIBITS
Exhibit R3(a) Copy of the release deed no 2081 of
2013 dated 27.6.2013 in favour of the
1st respondent
Exhibit R3(b) Copy of the letter of confirmation of
mortgage dated 31.3.2015
Exhibit R3(c) Copy of the demand notice dated
12.10.2021 issued under Section 13(2)
of the Securitisation Act
Exhibit R3(d) Photograph showing affixture of
possession notice on 22.3.2022
Exhibit R3(e) Copy of the SA No 382 of 2022 filed by
respondents 1 and 2 before the DRT-1
Ernakulam
