Kerala High Court
M.K.Nassarudeen Musaliar vs State Bank Of India on 23 May, 2024
Author: V.G.Arun
Bench: V.G.Arun
WA No.145 of 2024 1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR. A.J.DESAI
&
THE HONOURABLE MR.JUSTICE V.G.ARUN
THURSDAY, THE 23RD DAY OF MAY 2024 / 2ND JYAISHTA, 1946
WA NO. 145 OF 2024
AGAINST THE ORDER/JUDGMENT DATED IN WP(C) NO.31632 OF 2023 OF
HIGH COURT OF KERALA
APPELLANT/PETITIONER:
M.K.NASSARUDEEN MUSALIAR
AGED 57 YEARS
S/O MYTHEENKUNJU ,MUSALIAR, T.C 36/1104 (4), AMAL,
EANCHAKKAL, VALLAKKADVU P.O, THIRUVANANTHAPURAM., PIN
- 695008
BY ADVS.
SABU GEORGE
MANU VYASAN PETER
P.B.KRISHNAN
P.B.SUBRAMANYAN
RESPONDENTS:
1 STATE BANK OF INDIA
STRESSED ASSETS RECOVERY BRANCH, LMS COMPOUND, OPP.
MUSEUM WEST GATE, VIKAS BHAVAN P.O.,
THIRUVANANTHAPURAMREPRESENTED BY ITS CHIEF MANAGER,
PIN - 695033
2 CHIEF MANAGER AND AUTHORISED OFFICER,
STATE BANK OF INDIA, STRESSED ASSETS RECOVERY BRANCH,
LMS COMPOUND, OPP. MUSEUM WEST GATE, VIKAS BHAVAN
P.O., THIRUVANANTHAPURAM, PIN - 695033
3 GENERAL MANAGER (RECOVERY)
STATE BANK OF INDIA, LOCAL HEAD OFFICE, ROTTARY
JUNCTION, POOJAPPURA P.O., THIRUVANANTHAPURAM, PIN -
695012
WA No.145 of 2024 2
4 WE BUILD (P) LTD. (SOUGHT TO BE IMPLEADED )
HAVING ITS REGISTERED OFFICE AT TC 16/713, JAGATHY.
REPRESENTED BY ITS MANAGING DIRECTOR MR. C KAMALASANAN
S/O. CHELLAPPAN AGED 80 YEARS, RESIDING AT "SHRUTHY",
TC16/712, JAGATHY, THIRUVANANTHAPURAM- ( SOUGHT TO BE
IMPLEADED ), PIN - 695014
BY ADV Millu Dandapani
OTHER PRESENT:
ADV. VISHNU SARESH FOR ADV. MILLU
DANDAPANI,ADV.JAWARHAR JOSE
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 23.05.2024,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WA No.145 of 2024 3
A. J. Desai, C.J.
&
V.G. Arun, J.
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W.A.No.145 of 2024
---------------------------------------------
Dated this the 23rd day of May 2024
JUDGMENT
A.J. Desai, C.J.
The appellant had filed the writ petition seeking a direction to the
first respondent bank to handover possession of the property covered by
Ext.P4 Certificate of Sale issued in accordance with the provisions of the
SARFAESI Act and to pay 18% interest on the amount of
Rs.6,13,00,000/- deposited by him, from the date of remittance till the
date of execution of sale deed and handing over possession of the
property. Alternatively, the appellant had prayed for a direction to refund
Rs.6,13,00,000/- with 18% interest from the date of remittance till the
date of payment. The appellant was compelled to file the writ petition,
since the first respondent bank and its officials failed to execute the
sale deed and handover possession of the property purchased. By the
impugned judgment, the learned Single Judge directed the Debts
Recovery Tribunal to reconsider the application for setting aside of the
sale, filed by the borrower/4th respondent.
2. The learned Senior Counsel appearing for the appellant
contended that the long drawn litigation between the borrower and the
bank has resulted in the appellant being made to wait indefinitely. It
is submitted that the appellant had participated in the auction and
purchased the property based on Ext.P1 e-auction notice, wherein it is
specifically stated that physical possession of the property had been
taken by the Authorised Officer of the bank.
3. Learned Counsel for the bank submitted that only symbolic
possession of the property had been taken and the statement in Ext.P1
that its Authorised Officer had taken physical possession is a clerical
mistake.
4. It is unfortunate for the respondent bank to blame its own
officers with regard to the public notice for sale of the property in
auction, wherein it has been specifically mentioned that physical
possession of the property involved in the present proceedings has
been taken over by the Authorised Officer of the respondent bank.
Ext.P4 is the Certificate of Sale issued by the respondent bank wherein
also it is clearly stated that after receiving the amount of
Rs.6,13,00,000/- way back in the year 2021, possession of the property
in question has been handed over to the appellant. It appears that
several litigations were pending before the Debts Recovery Tribunal as
well as this Court with regard to the property in question. As a matter of
fact, possession of the property in question is with the borrower.
5. Considering the above aspects and without scrutinizing the case
on merits, we dispose of this appeal with the following directions;
i) The respondent bank i.e, the State Bank of India is hereby
directed to deposit the amount of Rs. 6,13,00,000/-(Rupees Six Crore
Thirteen Lakhs) with interest at the rate of 7% per annum, from the date
of receiving the aforesaid amount from the present appellant, with this
Court, within a period of eight weeks from today.
ii) The Registry shall invest the said amount in a Nationalised
Bank as Fixed Deposit and the interest accrued thereon shall be paid to
the appellant.
iii) It would be open for either party to move this Court by filing
appropriate application after disposal of the Securitisation Application
pending before the Debts Recovery Tribunal.
Sd/-
A. J. Desai
Chief Justice
Sd/-
V.G. Arun
Judge
dpk
