Kerala High Court
Ivy Bijoy vs Neeloor Service Co-Operaive Bank Ltd on 13 September, 2024
O.P(C). Nos.1494 & 1499 of 2022 1
2024:KER:70119
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE VIJU ABRAHAM
FRIDAY, THE 13TH DAY OF SEPTEMBER 2024 / 22ND BHADRA, 1946
OP(C) NO. 1494 OF 2022
EP NO.15 OF 2020 OF ASSISTANT SESSIONS COURT/SUB
COURT/COMMERCIAL COURT, PALA
PETITIONER:
IVY BIJOY, AGED 52 YEARS
WIFE OF BIJOY SEBASTIAN, NADUVILEKUTTU HOUSE,
KADANAD VILLAGE MEENACHIL TALUK,
KOTTAYAM DISTRICT-, PIN - 686653
BY ADV P.V.BABY
RESPONDENT:
NEELOOR SERVICE CO-OPERAIVE BANK LTD
NO. K-51 KADANAD VILLAGE, MEENACHIL TALUK,
KOTTAYAM DISTRICT- REPRESENTED BY
ITS SECRETARY-686653, PIN - 686653
BY ADVS.
Elizebath George
EMMANUEL CYRIAC(K/707/2019)
THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 13.09.2024,
ALONG WITH OP(C).1499/2022, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
O.P(C). Nos.1494 & 1499 of 2022 2
2024:KER:70119
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE VIJU ABRAHAM
FRIDAY, THE 13TH DAY OF SEPTEMBER 2024 / 22ND BHADRA, 1946
OP(C) NO. 1499 OF 2022
EP NO.17 OF 2020 IN ARC NO.873/2026 OF ASSISTANT SESSIONS
COURT/SUB COURT/COMMERCIAL COURT, PALA
PETITIONERS:
1 BIJOY SEBASTIAN
AGED 55 YEARS
SON OF . SEBASTIAN, NADUVILEKUTTU HOUSE,
KADANAD VILLAGE MEENACHIL TALUK,
KOTTAYAM DISTRICT-, PIN - 686653
2 IVY BIJOY, AGED 52 YEARS
WIFE OF BIJOY SEBASTIAN, NADUVILEKUTTU HOUSE,
KADANAD VILLAGE MEENACHIL TALUK,
KOTTAYAM DISTRICT-, PIN - 686653
BY ADVS.
P.V.BABY
A.N.SANTHOSH
RESPONDENT:
NEELOOR SERVICE CO-OPERATIVE BANK LTD.
NO. K-51 KADANAD VILLAGE, MEENACHIL TALUK,
KOTTAYAM DISTRICT- REPRESENTED BY
ITS SECRETARY-, PIN - 686653
BY ADVS.
Elizebath George
EMMANUEL CYRIAC(K/707/2019)
THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 13.09.2024,
ALONG WITH OP(C).1494/2022, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
O.P(C). Nos.1494 & 1499 of 2022 3
2024:KER:70119
VIJU ABRAHAM, J.
.................................................................
O.P(C). Nos.1494 & 1499 of 2022
.................................................................
Dated this the 13th day of September, 2024
JUDGMENT
In both these cases petitioners challenge Ext.P1 auction notice
on the ground that it is issued in violation of Rules 81 and 85 of the Kerala
Co-operative Societies Rules which stipulates that the sale of immovable
property should be proportionate to the amount due. The contention raised
by the petitioners is that it is only necessasry to auction one fourth of the
property excluding the house for the recovery of the dues to the bank. It is
contended that the Apex Court in Ram Kishun and others v. State of
U.P. and others, 2012 KHC 4365 (Volume 3, SN 5) has held that before
sale of property, a proper valuation report has to be obtained so that
reserve price can be fixed and that no valuation report has been prepared
in the present case so as to fix the reserve price.
2. Learned counsel appearing for the respondent bank submits that
on 23.10.2021 the encumbrance certificate and valuation certificate have
been produced. To which the learned counsel for the petitioners submits
that Ext.P3 objection was filed to the same and without considering the
objection in a proper manner that the upset price was fixed and Ext.P1
auction notice was issued.
Taking into consideration the contentions raised by the learned
2024:KER:70119
counsel appearing on both sides, I am inclined to dispose of the original
petitions setting aside Ext.P1 auction notice in both the cases with a
consequential direction to the execution court to re-consider the matter
after properly adverting to the objection raised in Ext.P3 and after affording
an opportunity of being heard to the petitioners as well as the respondent
bank and consider whether only a portion of the property excluding the
residential property is required for recovery of the amount due to the bank.
Original petitions are disposed of as above.
Sd/-
VIJU ABRAHAM
JUDGE
cks
2024:KER:70119
APPENDIX OF OP(C) 1494/2022
PETITIONER EXHIBITS
Exhibit P 1 EXHIBIT P1: A TRUE PHOTO COPY OF THE AUCTION
NOTICE IN E.P. NO.15/2020 IN ARC NO.
854/2016 DATED NIL BEFORE THE SUB COURT,
PALA
Exhibit P2 TRUE COPY OF THE AUCTION SCHEDULE IN EP NO.
15/2020 IN ARC NO. 854/2016 DATED 5/3/2021
BEFORE THE SUB COURT, PALA
Exhibit P3 TRUE COPY OF THE OBJECTION IN EP NO. 17/2020
IN ARC NO. 854/2016 DATED 15/1/2022 BEFORE
THE SUB COURT, PALA
RESPONDENT EXHIBITS
Exhibit R1(a) True copy of the B Diary proceedings in EP.
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APPENDIX OF OP(C) 1499/2022
PETITIONER EXHIBITS
Exhibit P1 TRUE PHOTO COPY OF THE AUCTION NOTICE IN
E.P. NO.17/2020 IN ARC NO. 873/2016 DATED
NIL BEFORE THE SUB COURT, PALA
Exhibit P2 TRUE COPY OF THE AUCTION SCHEDULE IN EP NO.
17/2020 IN ARC NO. 873/2016 DATED 5/3/2021
BEFORE THE SUB COURT, PALA
Exhibit P3 TRUE COPY OF THE OBJECTION IN EP NO. 17/2020
IN ARC NO. 873/2016 DATED 15/1/2022 BEFORE
THE SUB COURT, PALA
RESPONDENT EXHIBITS
Exhibit R1(a) True copy of the B Diary proceedings in EP.
