Muthanat Sini Alias Sini.T.M vs The Authorised Officer, South ...
2023 Latest Caselaw 5552 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                PRESENT
               THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN
        TUESDAY, THE 2ND DAY OF MAY 2023 / 12TH VAISAKHA, 1945
                         OP(C) NO.996 OF 2023
        AGAINST THE ORDER/JUDGMENTOS 119/2023 OF MUNSIF COURT,
                             KUTHUPARAMBA
PETITIONER:

            MUTHANAT SINI ALIAS SINI.T.M
            AGED 50 YEARS
            W/O SUNNY, AGED 50 YEARS, HOUSEWIFE, MUTHANAT HOUSE,
            KOTTIYOOR AMSOM, DESOM, P.O. KOTTIYOOR, IRITTY TALUK,
            KANNUR DISTRICT, PIN - 670651
            BY ADV R.SURENDRAN
RESPONDENTS:

    1       THE AUTHORISED OFFICER,
            SOUTH INDIAN BANK, REGIONAL OFFICE, THALAP, KANNUR,
            KANNUR DISTRICT, PIN - 670002
    2       K.M.ANIL
            ADVOCATE (ADVOCATE COMMISSIONER IN C.M.P. 5072/2022 OF
            CHIEF JUDICIAL MAGISTRATE COURT, THALASSERY),
            P.O. THALASSERY, KANNUR DISTRICT, PIN - 670101
    3       MUTHANAT SUNNY
            AGED 58 YEARS
            S/O MATHAI, AGED 58 YEARS, AGRICULTURIST,
            MUTHANAT HOUSE, KOTTIYOOR AMSOM, DESOM, P.O.
            KOTTIYOOR, IRITTY TALUK, KANNUR DISTRICT, PIN - 670651
    4       THE BRANCH MANAGER,
            SOUTH INDIAN BANK LTD., PERAVOOR BRANCH,
            MANATHANA AMSOM, PERAVOOR DESOM, P.O. PERAVOOR,
            IRITTY TALUK, KANNUR DISTRICT, PIN - 670673
            SRI.SUNIL SANKER
            SMT.G.SHEEBA, GP
     THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 02.05.2023,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 OP(C) NO.996 OF 2023

                                     2




                              JUDGMENT

Dated this the 2nd day of May, 2023

Heard the learned counsel for the petitioner and the learned

counsel for the respondent-Bank.

2. The short grievance espoused by the learned counsel for the

petitioner is that, the land having an extent of 49 Ares and another 30

Square Meters, which has not been mortgaged to the respondent-Bank

is also sought to be proceeded against under the Securitisation and

Reconstruction of Financial Assets and Enforcement of Security

Interest Act (hereinafter referred as 'SARFAESI Act') vide Ext.P8

order. The learned counsel would make this submission based on the

boundaries shown in Ext.P7 petition filed before the Chief Judicial

Magistrate concerned. The learned counsel would also clarify that the

petitioner has no grievance in proceeding against the secured assets,

which have been mortgaged with the respondent-Bank.

3. Learned counsel for the respondent-Bank would contend that the

petitioner has got an effective remedy under Section 17 of the OP(C) NO.996 OF 2023

SARFAESI Act. Besides, as per the instructions received by the

learned counsel, the said 49 Ares and 30 Square Meters also form part

of the mortgaged property.

4. Having heard the learned counsel appearing on both sides, this

Court would clarify that all further proceedings pursuant to Ext.P8

shall only be in respect of 66.34 Ares of land and 1.73 Ares of land

made mention of in paragraph No.5.1 of Ext.P8 order. The above

referred 49 Ares and 30 Square Meters shall not be proceeded against

in furtherance of Ext.P8, unless it forms part of 66.34 Ares and 1.73

Ares afore referred, which have been admittedly mortgaged with the

respondent-Bank.

With this clarification, this OP(C) will stand disposed of. The

suit, O.S. No.119/2023, will proceed untrammelled by any of the

observations made in this case.

Sd/-

C. JAYACHANDRAN JUDGE NP OP(C) NO.996 OF 2023

APPENDIX OF OP(C) 996/2023

PETITIONER'S EXHIBITS Exhibit-P1 A TRUE COPY OF THE PLAINT DATED 1-3-2023 IN O.S NO.119 OF 2023 ON THE FILE OF MUNSIFF'S COURT, KUTHUPARAMBA Exhibit-P2 A TRUE COPY OF THE SETTLEMENT DEED DATED 20-8-2007 EXECUTED BY MATHAYI AND REGISTERED AS DOCUMENT NO. 3274 OF 2007 OF PERAVOOR SUB REGISTRAR'S OFFICE IN FAVOUR OF THE THIRD RESPONDENT Exhibit-P3 A TRUE COPY OF THE SETTLEMENT DEED DATED 20-8-2007 EXECUTED BY MATHAYI AND REGISTERED AS DOCUMENT NO. 3275 OF 2007 OF PERAVOOR SUB REGISTRAR'S OFFICE IN FAVOUR OF THE THIRD RESPONDENT Exhibit-P4 A TRUE COPY OF THE SETTLEMENT DEED DATED 18-6-2013 REGISTERED AS DOCUMENT NO.2040/2013 OF PERAVOOR SUB REGISTRAR'S OFFICE IN FAVOUR OF THE PETITIONER Exhibit-P5 A TRUE COPY OF THE SETTLEMENT DEED DATED 9-7-2013 REGISTERED AS DOCUMENT NO.2238/2013 OF PERAVOOR SUB REGISTRAR'S OFFICE IN FAVOUR OF THE PETITIONER Exhibit-P6 A TRUE COPY OF THE NOTICE DATED 25-11-2021 ISSUED BY THE FIRST RESPONDENT UNDER SECTION 13(2) OF THE SARFAESI ACT Exhibit-P7 A TRUE COPY OF THE PETITION DATED 4-11-2022 FILED BY THE FIRST RESPONDENT BEFORE THE CHIEF JUDICIAL MAGISTRATE COURT, THALASSERY AS CMP NO.5072 OF

Exhibit-P8 A TRUE COPY OF THE ORDER DATED 30-12-2022 IN CMP NO.5072 OF 2022 ISSUED BY THE CHIEF JUDICIAL MAGISTRATE COURT, THALASSERY Exhibit-P9 A TRUE COPY OF THE NOTICE DATED 7-2-2023 ISSUED BY THE SECOND RESPONDENT Exhibit-P10 A TRUE COPY OF THE AFFIDAVIT FILED IN SUPPORT OF THE APPLICATION I.A NO.2 OF 2023 IN O.S NO.119 OF 2023 ON THE FILE OF MUNSIFF'S COURT, KUTHUPARAMBA Exhibit-P11 A TRUE COPY OF THE AFFIDAVIT FILED IN SUPPORT OF THE APPLICATION I.A NO.3 OF 2023 IN O.S NO.119 OF 2023 ON THE FILE OF MUNSIFF'S COURT, KUTHUPARAMBA RESPONDENTS' EXHIBITS: NIL