Kerala High Court
Sajan.V.R vs The Special Sale Officer on 6 June, 2024
Author: Devan Ramachandran
Bench: Devan Ramachandran
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
THURSDAY, THE 6TH DAY OF JUNE 2024 / 16TH JYAISHTA, 1946
WP(C) NO. 13283 OF 2024
PETITIONER:
SAJAN.V.R, AGED 49 YEARS
S/O. RAMAN, VADAKKUT NELLIPARAMBIL HOUSE,
AVINISSERY.P.O, THRISSUR DISTRICT, PIN - 680306.
BY ADVS.
C.D.DILEEP
SHYLAJA VARGHESE
RESPONDENTS:
1 THE SPECIAL SALE OFFICER
MANALUR SCB GROUP,
OFFICE OF THE ASSISTANT REGISTRAR CO-OPERATIVE
SOCIETIES AYYANTHOLE, THRISSUR DISTRICT, PIN - 680003
2 VARADIYAM SERVICE CO-OPERATIVE BANK LTD NO.575
VARADIYAM.P.O, THRISSUR DISTRICT. REPRESENTED BY ITS
SECRETARY., PIN - 680545.
3 SAJEEV
S/O ALAIKKAL KUMARAN, NALUCENTROAD, VELAPPAYA.P.O.
THRISSUR DISTRICT., PIN - 680596.
4 BHAVADASAN
S/O.KOCHAMMINI WARASYAR, MARATH HOUSE,
VELAPPAYA.P.O. THRISSUR DISTRICT., PIN - 680596.
BY ADVS.
CHACKO C A
RAMESH P
MUHAMMED HUSSAIN.K.M
JINU SAMYUKTHA PADMAKUMAR(K/000827/2024)
GLORY JESSY SAMUEL(K/000962/2024)
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
06.06.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C) NO. 13283 OF 2024
-2-
JUDGMENT
The petitioner says that he purchased the
property involved in this case through a Court
Auction and therefore, that his title over it is
unimpeachable; but that the respondent - Bank,
is trying to proceed against him on the
allegation that its original owner, namely the
3rd respondent, had mortgaged it to them, prior.
2. Sri.C.D.Dileep - learned counsel for the
petitioner, explained that his client had
entered into an agreement of sale with the 3rd
respondent; but when they did not honour it, he
filed O.S.No.21/2015 before the Sub Court,
Thrissur, and obtained a decree, which was then
put into execution, consequent to which, the
property was sold by Court and purchased by his
client validly. He submitted that, therefore,
the respondent - Bank, cannot claim any right
over the said property; and hence that Ext.P3
WP(C) NO. 13283 OF 2024
recovery notice and further proceedings against
the property are illegal and unlawful.
3. However, in response to the afore
submissions, the learned Standing Counsel for
the respondent Bank - Sri.C.A.Chacko, submitted
that the aforementioned O.S.No.21/2015 filed
before the Sub Court, Thrissur, by the
petitioner was a clear collaborative action
between him and the 3rd respondent, which is
evident from the fact that the said Suit was
decreed ex parte; and that, even when the
execution proceedings were continued, the said
respondent did not intervene or cause any
objection. He submitted that, even much prior to
the said Suit, the property had been equitably
mortgaged to his client; and obviously that the
petitioner could not have any opportunity to
have seen the original Title Deeds of the
property, because they were already with the
WP(C) NO. 13283 OF 2024
Bank. He argued that, therefore, all such
collusive action between the petitioner and the
3rd respondent, including the execution
proceedings and the consequent sale of the
property, cannot bind his client; and thus
prayed that this Writ Petition be dismissed.
4. Sri.K.M.Muhammed Hussain - learned
counsel for the 4th respondent, submitted that
his client is only a surety of the loan availed
of by the 3rd respondent; and therefore, that the
action now initiated by the Bank is without
error.
4. I notice from the file that the 3rd
respondent has been validly served summons from
this Court. However, he has chosen not to be
present in person, or to be represented through
counsel; thus constraining me to dispose of this
matter in his absence.
6. When I consider and evaluate the afore
WP(C) NO. 13283 OF 2024
rival submissions, it is obvious that the real
issue involved in this case is as to who has the
first charge over the property in question.
While the Bank claims such right on the basis of
an equitable mortgage, the petitioner impels it
on the basis of a Court Auction conducted in his
favour.
7. However, it must be borne in mind that
the petitioner has not produced the alleged
agreement of sale that he had entered into with
the 3rd respondent, nor has he explained how he
entered into such without even seeing the
original Title Documents. This is more pertinent
because, according to him, he entered into the
sale deed only in the year 2015; while the Bank
maintains that the mortgage obtained by them was
much prior.
8. The afore disputes are obviously in the
realm of facts, into which this Court cannot
WP(C) NO. 13283 OF 2024
enter, while acting under Article 226 of the
Constitution of India.
9. Prima facie, however, the Bank is acting
upon an equitable mortgage over the property in
question; while, the petitioner concedes that he
had entered into an agreement without being
aware of the same and without seeing the title
documents. Indubitably, therefore, it is for him
to establish his case appropriately before other
Forums.
10. Presumably being aware of the mind of
this Court as afore, the learned counsel for the
petitioner - Sri.C.D.Dileep, intervened to say
that, since his client is a victim of
circumstances, he may be permitted to pay off
the entire loan liability and recover it from
the 3rd respondent.
11. I, therefore, put it to the learned
Standing Counsel for the Bank, who agreed that
WP(C) NO. 13283 OF 2024
the petitioner can be allowed to pay off the
total outstanding - which is an amount of
Rs.25,34,937/- as on 06.04.2024 - in not more
than ten instalments.
12. Sri.C.D.Dileep - learned counsel for the
petitioner, sought 20 instalments to pay off the
aforesaid amount, but sensing that the Bank was
not agreeable to the same, confined it to ten.
In the afore circumstances, and acceding to
the request of the petitioner, I allow this Writ
Petition to the limited extent of leaving him
liberty to redeem the property, by paying the
aforementioned amount, along with all applicable
charges and interest, into the loan account of
the 3rd respondent in ten equal monthly
instalments, commencing from 15.07.2024.
If the petitioner is to pay as afore, all
coercive actions pursuant to Ext.P3 shall stand
deferred and the loan liability will stand
WP(C) NO. 13283 OF 2024
closed.
The liberty of the petitioner, as may be
available to him in law, to proceed
appropriately against the 3rd respondent for
recovery of the amounts, as also seeking return
of the title documents from the Bank, through
appropriate Forums/Courts, is left open.
In addition to the afore, if the petitioner
does not comply with the directions above, or
default in payment of any two instalments, then
the Bank will be at liberty to deal with the
property in any manner that they may deem fit;
however, after returning the money, if any, paid
by the petitioner in terms of the directions in
this judgment.
Sd/-
DEVAN RAMACHANDRAN
JUDGE
akv
WP(C) NO. 13283 OF 2024
APPENDIX OF WP(C) 13283/2024
PETITIONER EXHIBITS
EXHIBIT-P1 A TRUE COPY OF THE JUDGMENT DATED
13.01.2020 IN OS.NO.21/2015 OF THE
1ST ADDITIONAL SUB COURT, THRISSUR.
EXHIBIT-P1(A) A TRUE COPY OF THE DECREE DATED
13.01.2020 IN OS.NO.21/2015 OF THE
1ST ADDITIONAL SUB COURT, THRISSUR.
EXHIBIT-P2 A TRUE COPY OF SALE NOTICE ISSUED
DATED 04.05.2023 OF THE SUB COURT
THRISSUR.
EXHIBIT-P3 A TRUE COPY OF THE NOTICE IN THE FORM
NO.6 DATED 07.03.2024 AFFIXED ON THE
HOUSE FOR ATTACHING THE PROPERTY BY
THE 1ST RESPONDENT.
RESPONDENT EXHIBITS
EXHIBIT R2(A) TRUE COPY OF DEED NO.G1590/12 OF SRO,
MUNDUR
EXHIBIT R2(B) TRUE COPY OF ENCUMBRANCE CERTIFICATE
ISSUED FROM SRO, MUNDUR DATED
31/7/2012
EXHIBIT R2(C) TRUE COPY OF AWARD IN ARC.NO.2992/18
DATED 22/11/2018
EXHIBIT R2(D) TRUE COPY OF EP.NO. 2886/19 FILED
BEFORE THE ASSISTANT REGISTRAR OF CO-
OPERATIVE SOCIETIES
