Divya Haridas P vs The Kerala State Financial ...
2023 Latest Caselaw 8803 Ker

                IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                PRESENT
              THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
     MONDAY, THE 14TH DAY OF AUGUST 2023 / 23RD SRAVANA, 1945
                        WP(C) NO. 34456 OF 2022
PETITIONER:

          DIVYA HARIDAS P., AGED 38 YEARS
          W/O. T. SUDHEER, MELEPAT HOUSE, PACHATTIRI. P.O, TIRUR,
          MALAPPURAM - 676 105.
          BY ADV K.PRAVEEN KUMAR

RESPONDENTS:

    1     THE KERALA STATE FINANCIAL ENTERPRISES LIMITED
          REPRESENTED BY ITS MANAGING DIRECTOR, 'BHADRATHA',
          MUSEUM ROAD, P.B. NO. 510, THRISSUR - 680 020.
    2     THE MANAGER,
          KERALA STATE FINANCIAL ENTERPRISES, KOOTTANAD BRANCH,
          KRISHNA ARCADE, PATTAMBI ROAD, PALAKKAD - 679 533.
    3     HARIDASAN.P, S/O, PADMANABHAN NAIR, PATTATH HOUSE,
          CHALISSERY.P.O, KAVUKODE AMSOM, PALAKKAD - 679 536.
    4     MRS. DEEPA NAIR, W/O. MUKUNDAN, RESIDING AT NO. 503,
          GANGOTHRI CHS LTD, PLOT NOR 57, GORAI -2, BORIVILI
          WEST, MUMBAI - 92.
    5     MUKUNDAN, RESIDING AT NO. 503, GANGOTHRI CHS LTD,PLOT
          NOR 57, GORAI -2, BORIVILI WEST, MUMBAI - 92.
    6     THE STATE OF KERALA,
          REPRESENTED BY ITS SECRETARY, TAXES DEPARTMENT,
          SECRETARIAT, THIRUVANANTHAPURAM-695 001.
          BY ADVS.
          SRI.SANTHEEP ANKARATH - R4
          P.ANIRUDHAN(K/002306/2021)
          SRI. B.S.SYAMANTAK, GP
          SRI.SALIL NARAYANAN K.A., SC, KSFE



     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
14.08.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C) NO.34456 OF 2022


                                 2




            P.V.KUNHIKRISHNAN, J.
           ------------------------------
           W.P.(C) No.34456 of 2022
   ----------------------------------------------
   Dated this the 14th day of August, 2023


                       JUDGMENT

The above writ petition is filed with the

following prayers:

"i) issue a writ of certiorari or any other appropriate writ, order or direction calling for the records to leading to Ext. P7 to P9 and to quash the originals of the same;

ii) to declare that the 1st and 2nd respondents cannot proceed against the petitioner and her property covered by Ext.P3 to Ext. P5 for the recovery of the dues of the 3rd respondent;

iii) issue a writ of certiorari calling for the records leading to Ext. P10 and to quash the original of the same;

iv) issue a writ of mandamus or any WP(C) NO.34456 OF 2022

other appropriate writ, order or direction to 1 st and 2nd respondents to proceed against the property mortgaged by the 3rd respondent to realize the dues from him;

v) issue a writ of mandamus or any other appropriate writ, order or direction to 2 nd respondent to consider pass order on Ext. P11, as expeditiously as possible;

vi) issue such other writ, order or direction as this Hon'ble Court may deem fit and proper in the circumstances of the case;

vii) to permit the petitioner to produce translations of the vernacular documents as and when directed by this Hon'ble Court;"[SIC]

2. Petitioner is challenging Exts.P7 to P9

recovery proceedings of the 2nd respondent and

Ext.P10 order of the government initiated for the

dues of the 3rd respondent. According to the

petitioner, he is not the surety of the 3 rd

respondent. The 3rd respondent had subscribed to

various chitties and received loans and price WP(C) NO.34456 OF 2022

money by mortgaging the property of the

petitioner and also the property of the 4 th and 5th

respondents. The properties of the petitioner and

her sister were mortgaged for different chitties.

The petitioner herein had also subscribed to

certain chits and the price money was deposited

with the 1st respondent itself through the 2nd

respondent. It is submitted that, while so, on

06.03.2017 the petitioner sent an E-mail message

to the 2nd respondent expressing her willingness

to release the above said property jointly owned

by herself and her father, the 3rd respondent

herein, as evident by Ext.P1 E-mail. It is

submitted that, upon receipt of Ext.P1 the 2 nd

respondent instructed the petitioner to clear the

overdue amount caused by the 3rd respondent

herein in respect of the chit to which the above WP(C) NO.34456 OF 2022

property was mortgaged as security. It is the case

of the petitioner that, she sent another E-mail

communication to the 2nd respondent authorizing

to adjust necessary amount from her fixed

deposit with the 2nd respondent to clear the dues

of her father and to release the title deed of the

jointly owned property. According to the

petitioner, the title deed was released by the 2 nd

respondent after clearing the dues of the 3rd

respondent. Thereafter the petitioner's father Sri.

Haridasan.P, the 3rd respondent had transferred

his half share in the above property to the

petitioner as per Ext.P3 assignment deed, is the

submission. After that the petitioner has been

paying land tax to the Government in respect of

the above property, is the further submission.

While so, the petitioner received Revenue WP(C) NO.34456 OF 2022

Recovery proceedings issued by the 2nd

respondent against her property covered by Exts.

P3 to P5 are for the recovery of the dues caused

by the 3rd respondent herein. Upon receipt of the

recovery proceedings, the petitioner and her

father filed a complaint before the District

Collector, Palakkad and the District Collector

issued Ext.P6 proceedings addressing the 2 nd

respondent herein with copy to the petitioner, her

father and her sister, the 4th respondent herein in

which it is stated that the Revenue Recovery

proceedings were dropped on the ground that the

dispute was referred to the arbitrator and the

same is pending. Thereafter, the petitioner

received Exts.P7 to P9 notices. It is further

submitted that, when the petitioner contacted the

2nd respondent and asked about the above WP(C) NO.34456 OF 2022

notices, she was told that the government issued

Ext.P10 order disposing of the appeal filed by the

1st respondent against the arbitration award

passed by the Joint Registrar of chits, North-

Central Zone, Thrissur. It is the case of the

petitioner that, no notice regarding Ext.P10

proceedings or arbitration proceedings was

received by her. Upon receipt of Exts.P7 to P10,

the petitioner sent a representation to the 2 nd

respondent as evident by Ext.P11. But that has

not been considered. In such circumstances, this

writ petition is filed.

3. Heard the learned counsel appearing for

the petitioner, the learned Government Pleader,

the learned Standing counsel appearing for

respondents 1 & 2 and the learned counsel

appearing for the 4th respondent. WP(C) NO.34456 OF 2022

4. When this writ petition came up for

consideration on 28.10.2022, this Court passed

the following order:

"Admit.

Adv.Salil Narayanan takes notice for R1 & R2. Issue notice to R3 to R5 through speed post. Learned Govt.Pleader takes notice for R6.

Post immediately after service of notice. KSFE to file counter affidavit at the earliest. Petitioner's property shall not be brought to sale till the next posting date, subject to the condition that the petitioner will not be alienated or encumbered the property."

5. After hearing both sides, I am of the

considered opinion that the petitioner has to

submit the grievance raised in this writ petition by

way of a representation before the 1st respondent

and if such a representation is received, there can

be a direction to the 1st respondent to consider

the same in accordance with law with notice to WP(C) NO.34456 OF 2022

the petitioner and other affected parties, if any. If

the representation is submitted as directed above,

the interim order dated 28.10.2022 can continue

till the representation is considered by the 1 st

respondent.

Therefore, this writ petition is disposed of

with the following directions:

i. The petitioner is free to submit a

representation narrating the grievance raised

in this writ petition before the 1 st respondent

within a period of two weeks from the date of

receipt of a certified copy of this judgment.

ii. Once such a representation is

received, the 1st respondent will consider the

same and pass appropriate orders in it, after

giving an opportunity of hearing to the

petitioner and other affected parties, if any, as WP(C) NO.34456 OF 2022

expeditiously as possible, at any rate, within a

period of two months from the date of receipt

of the representation.

iii. Till final orders are passed as

directed above, the interim order dated

28.10.2022 will continue.

Sd/-

P.V.KUNHIKRISHNAN DM JUDGE WP(C) NO.34456 OF 2022

APPENDIX OF WP(C) 34456/2022

PETITIONER EXHIBITS EXHIBIT P1 TRUE COPY OF THE EMAIL MESSAGE DATED 06.03.2017.

EXHIBIT P2 TRUE COPY OF THE EMAIL COMMUNICATION DATED 8-3-2017. EXHIBIT P3 TRUE COPY OF THE ASSIGNMENT DEED DATED 16.03.2017.

EXHIBIT P4 TRUE OF THE LAND COPY TAX RECEIPT BEARING NO. LK 09060603001/2019 DATED 16.07.2019.

EXHIBIT P5 TRUE COPY PROPERTY TAX RECEIPT BEARING NO. A1395114 DATED 15.09.2020.

EXHIBIT P6 TRUE COPY OF THE PROCEEDING NO.

                   DCPKD   /13219/2019 -B9    DATED
                   25.06.2021.
EXHIBIT P7         TRUE COPY OF THE NOTICE NO.

3/2014-39 DATED 19.10.2022 ISSUED BY THE 2ND RESPONDENT.

EXHIBIT P8 TRUE COPY OF THE NOTICE NO.

                   10/2013-20    DATED    19.10.2022
                   ISSUED BY THE 2ND RESPONDENT.
EXHIBIT P9         TRUE COPY OF THE NOTICE NO.
                   10/2012-50    DATED    19.10.2022
                   ISSUED BY THE 2ND RESPONDENT.
EXHIBIT P10        TRUE COPY OF THE G.O.(RT) NO.

732/2022/TAXES DATED 19.09.2022 ISSUED BY THE GOVERNMENT.

WP(C) NO.34456 OF 2022

EXHIBIT P11 TRUE COPY OF THE REPRESENTATION SENT TO THE 2ND RESPONDENT.

RESPONDENT EXHIBITS EXHIBIT R4 B TRUE COPY OF POWER OF ATTORNEY DATED 20.9.2013 EXECUTED BY 4TH AND 5TH RESPONDENTS IN FAVOUR OF THE 3RD RESPONDENT.

EXHIBIT R4 C TRUE COPY OF THE REPORT DATED 20.6.2019 OF DISTRICT REGISTRAR (GENERAL), PALAKKAD EXHIBIT R4 D TRUE COPY OF REPORT DATED 3.1.2020 OF ASSISTANT INSPECTOR GENERAL ON BEHALF OF REGISTRATION INSPECTOR GENERAL.

EXHIBIT R4 E TRUE COPY OF THE ARBITRAL AWARD DATED 26.8.2021 ISSUED BY JOINT REGISTRAR OF CHITS.

EXHIBIT R4 F TRUE COPY OF COPY OF NOTICE DATED 26.3.2022 ISSUED TO RESPONDENTS 4 AND 5 BY ADDITIONAL CHIEF SECRETARY TO GOVERNMENT.

EXHIBIT R4 A TRUE COPY OF THE PETITION DATED 21.1.2020 SUBMITTED BY FATHER AND MOTHER OF THE PETITIONER AND 4TH RESPONDENT BEFORE THE REVENUE DIVISIONAL OFFICER (SUB COLLECTOR).

RESPONDENTS EXHIBITS       :NIL
                 //TRUE COPY//    PA TO JUDGE