Kerala High Court
K.C. Sabu vs Chief Judicial Magistrate, Kottayam on 23 February, 2024
Author: N.Nagaresh
Bench: N.Nagaresh
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE N.NAGARESH
FRIDAY, THE 23RD DAY OF FEBRUARY 2024/4TH PHALGUNA, 1945
WP(C) NO. 22355 OF 2023
PETITIONER:
K.C. SABU,
AGED 60 YEARS
S/O. LATE K. CHELLAPPAN
KATHU NIVAS, THIRUNAKKARA KARA,
KOTTAYAM P.O., KOTTAYAM VILLAGE,
KOTTAYAM TALUK - 686001
BY ADVS.
LIJI.J.VADAKEDOM
TOM E. JACOB
REXY ELIZABETH THOMAS
ATHUL V. VADAKKEDOM
RESPONDENTS:
1 CHIEF JUDICIAL MAGISTRATE,
KOTTAYAM COLLECTORATE P.O,
KOTTAYAM DISTRICT - 686002
2 THE SOUTH INDIAN BANK LTD.,
REPRESENTED BY ITS CHIEF MANAGER & AUTHORIZED
OFFICER, REGIONAL OFFICE,
K.K. ROAD, KOTTAYAM, PIN - 686002
3 RAJEEV K.N
S/O. K.S. NARAYANAN NAIR,
KULANGARA HOUSE, THIRUNAKKARA,
KOTTAYAM, PIN - 686001
4 SANDHYA K.V
W/O. RAJEEV K.N, KULANGARA HOUSE,
THIRUNAKKARA, KOTTAYAM, PIN - 686001
5 VRINDA RAJESH
W/O. LATE RAJESH, VAISHNAVAM,
KUDAMALOOR, KOTTAYAM, PIN - 686017
W.P.(C) No.22355/2023
:2:
BY ADVS.
SMT.SHEEJA C.S., SR. GOVERNMENT PLEADER
P.A.AUGUSTINE(AREEKATTEL)
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 23.02.2024, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
W.P.(C) No.22355/2023
:3:
N. NAGARESH, J.
`````````````````````````````````````````````````````````````
W.P.(C) No.22355 of 2023
`````````````````````````````````````````````````````````````
Dated this the 23rd day of February, 2024
JUDGMENT
~~~~~~~~~
The petitioner is before this Court challenging
Exts.P7 and P8 orders passed by the 1 st respondent-Chief
Judicial Magistrate, Kottayam.
2. The petitioner states that the 3 rd respondent, who
is a close friend of the petitioner, has been running a
financial institution along with respondents 4 and 5. The 3 rd
respondent is the husband of the 4 th respondent and the 5th
respondent is the sister-in-law of the 3 rd respondent. The 3rd
respondent has been borrowing money for business, from
the petitioner.
3. In May, 2011, the 3rd respondent wanted ₹35 lakhs
urgently and suggested the petitioner to deposit title deed of
the property of the petitioner with the 2 nd respondent-Bank to
secure a loan. Later, the 3 rd respondent wanted the
petitioner to execute a conveyance deed with respect to the
first plot in favour of respondents 3 to 5 so as to mortgage
the same. The 3rd respondent assured the petitioner that the
property will be reconveyed to the petitioner. Therefore, the
petitioner executed Ext.P1 sale deed dated 24.05.2011 in
favour of the 3rd respondent. The Bank advanced ₹45 lakhs
on 05.03.2011 to the respondents.
4. In the year 2014, when the petitioner requested
the 3rd respondent to reconvey the property by executing a
sale deed, the 3rd respondent refused to do so. The
petitioner therefore filed OS No.24/2015 against respondents
3 to 5. In the meanwhile, the Bank has initiated proceedings
invoking the provisions of the Securitisation and
Reconstruction of Financial Assets and Enforcement of
Security Interest Act, 2002 to take over the petitioner's
property and sell the same.
5. By Ext.P7 order, the Chief Judicial Magistrate,
Kottayam permitted appointment of Taluk Surveyor to
identify, measure out and demarcate the property. By Ext.P8
order, the Chief Judicial Magistrate, Kottayam issued notice
to the Tahsildar. The petitioner is challenging Exts.P7 and
P8.
6. The counsel for the petitioner argued that the title
deed executed in favour of the 3 rd respondent by the
petitioner is a sham document. OS No.24/2015 is pending in
the civil court in this regard. By Ext.P6, the Advocate
Commissioner has stated that he cannot identify the
property. The Chief Judicial Magistrate has appointed Taluk
Surveyor.
7. The petitioner submitted that the Bank has to go to
Taluk Surveyor for demarcation of property. The Bank has a
remedy for fixation of boundary. A Magistrate exercising
powers under Section 14 has no such powers.
8. The petitioner cannot be said to be a person
aggrieved by any action of the Bank under Section 13 or
Section 14 of the SARFAESI Act, 2002. The petitioner
submitted that in view of the judgment of the Apex Court in
Ayaaubkhan Noorkhan Pathan v. State of Maharashtra
and another [2012 KHC 4653], the petitioner cannot
approach the Debts Recovery Tribunal.
9. The 2nd respondent resisted the writ petition. On
behalf of the 2nd respondent, it is submitted that respondents
3 to 5 are the owners of the plot in question. The property
has well demarcated boundary walls on all sides.
Respondents 3 to 5 have mortgaged the property for availing
loan. When the Advocate Commissioner tried to take
possession of the secured asset, the petitioner disputed the
identity of the property and unlawfully obstructed the process
of taking possession. The writ petition is without any force
and it is liable to be dismissed.
10. I have heard the learned counsel for the petitioner
and the learned Standing Counsel for the 2 nd respondent. I
have also heard the learned Senior Government Pleader
representing the 1st respondent.
11. The petitioner challenges Exts.P7 and P8
proceedings of the Chief Judicial Magistrate, Kottayam. By
Ext.P7 order, the Chief Judicial Magistrate allowed the
application filed by the Bank to appoint Taluk Surveyor to
identify, measure out and demarcate the property mortgaged
by the 3rd respondent. By Ext.P8, the Chief Judicial
Magistrate issued letter to the Tahsildar. Exts.P7 and P8
orders would not affect any claim of the petitioner nor it will
substantially interfere with any rights of the petitioner.
Respondents 3 to 5 have mortgaged a property to the Bank
to avail financial advance. Respondents 3 to 5 hold the
property under a title deed. According to the petitioner, the
petitioner had conveyed property to respondents 3 to 5 by
way of a sham document. In effect, the argument of the
petitioner is that the title deed of the property has not
conveyed the property to respondents 3 to 5.
12. The petitioner cannot advance such arguments
when admittedly there is a registered deed of conveyance of
the petitioner's property in favour of respondents 3 to 5. If
the petitioner is challenging the legality or genuineness of a
registered document, the petitioner has to approach
competent civil court and obtain orders to that effect. The
petitioner has, in fact, filed a civil suit in this regard. But, the
civil court has not passed any order or judgment in favour of
the petitioner so far.
13. Respondents 3 to 5 have mortgaged the property
in question by deposit of title deed, which is a registered title
deed. When respondents 3 to 5 failed to maintain the loan
account, the Bank has initiated proceedings under the
Securitisation and Reconstruction of Financial Assets and
Enforcement of Security Interest Act, 2002. The petitioner
cannot aspire to stop the proceedings initiated by the Bank
by merely making a statement or allegation that the title deed
held by the 2nd respondent is a sham document.
In the circumstances, I do not find any merit in the
writ petition. The writ petition is therefore dismissed.
Sd/-
N. NAGARESH, JUDGE
aks
APPENDIX OF WP(C) 22355/2023
PETITIONER'S EXHIBITS
Exhibit P1 THE COPY OF THE SALE DEED NO.
1417/2011 DATED 24.05.2011 OF THE
ADDITIONAL SRO, KOTTAYAM EXECUTED BY
THE PETITIONER
Exhibit P2 THE COPY OF THE PLAINT IN O.S. NO.
24/2015 BEFORE THE SUB COURT, KOTTAYAM
Exhibit P3 THE COPY OF THE PETITION UNDER SECTION
14 OF THE SARFAESI ACT FILED AS CMP
NO. 609/2018 BEFORE THE COURT OF THE
HON'BLE CHIEF JUDICIAL MAGISTRATE
Exhibit P4 THE COPY OF THE AFFIDAVIT AND PETITION
DATED 22.11.2019 FILED BY THE
PETITIONER IN CMP NO. 609/2018 BEFORE
THE COURT OF THE CHIEF JUDICIAL
MAGISTRATE, KOTTAYAM FOR IMPLEADING
HIM AS ADDITIONAL RESPONDENT NO.4
Exhibit P5 THE COPY OF THE OBJECTION FILED BY 2ND
RESPONDENT TO EXHIBIT P4- IMPLEADING
PETITION FILED BY THE PETITIONER
Exhibit P6 THE COPY OF THE COMMISSION REPORT IN
CMP 609/2018 BEFORE THE COURT OF THE
CHIEF JUDICIAL MAGISTRATE, KOTTAYAM
Exhibit P7 THE CERTIFIED COPY OF THE EXTRACT
ORDER SHEET IN CMP NO.609/2018 PASSED
BY 1ST RESPONDENT-CHIEF JUDICIAL
MAGISTRATE ON 03.03.2022
Exhibit P8 THE CERTIFIED COPY OF THE EXTRACT
ORDER SHEET IN CMP NO. 609/2018 PASSED
BY THE 1ST RESPONDENT - CHIEF JUDICIAL
MAGISTRATE ON 06.06.2023
RESPONDENT'S EXHIBITS
Exhibit R-2(a) Judgment passed by the Sub Court,
Kottayam in O.S. No. 24/2015.
