Kerala High Court
Joshy Thomas K vs Dainamma Mathew on 14 August, 2025
Author: Anil K.Narendran
Bench: Anil K.Narendran
W.A.Nos.1603 & 1604 of 2025
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN
&
THE HONOURABLE MR.JUSTICE P. V. BALAKRISHNAN
THURSDAY, THE 14TH DAY OF AUGUST 2025/ 29TH SRAVANA, 1947
WA NO. 1603 OF 2025
(AGAINST THE JUDGMENT DATED 22.10.2024 IN WP(C)
NO.27236 OF 2018 OF HIGH COURT OF KERALA)
APPELLANTS/THIRD PARTIES
1 JOSHY THOMAS K.
AGED 61 YEARS
S/O. K. O. THOMAS, KAKKASSERY HOUSE, MARIYAPURAM,
ANCHERY P.O., THRISSUR DISTRICT, PIN - 680006
2 SUSEELA THOMAS
AGED 83 YEARS
W/O. K.O. THOMAS, KAKKASSERY HOUSE, MARIYAPURAM,
ANCHERY P.O., THRISSUR DISTRICT, PIN - 680006
BY ADVS.
SMT.NISHA GEORGE
SRI.GEORGE POONTHOTTAM (SR.)
RESPONDENTS/WRIT PETITIONERS & RESPONDENTS
1 DAINAMMA MATHEW
W/O.AUGUSTINE, EDAKKARA HOUSE, PARAVANNA,
MALAPPURAM DISTRICT., PIN - 676502
2 SHEETHAL MARIYA JOSEPH
D/O.JOSEPH AUGUSTINE, EDAKKARA HOUSE, PARAVANNA,
MALAPPURAM DISTRICT., PIN - 676502
3 CIVIN V.THEKKETHALA
W.A.Nos.1603 & 1604 of 2025
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S/O.VINCENT, BLUE NAIL COTTAGE, PARAPPANANGADI
ROAD, TIRUR P.O., MALAPPURAM., PIN - 676101
4 LATE BALACHANDRA B.
REP. BY HIS LEAGAL HEIR MEERA.M, BALATHIL
HOUSE,NIRAMARATHU P.O., TIRUR, MALAPPURAM., PIN -
676109
5 SHAJI M JOSEPH
S/O.JOSEPH, KOTTARAM ROAD , T.B.ANGADI, TIRUR,
MALAPPURAM DISTRICT., PIN - 676101
6 THE SOUTH INDIAN BANK LTD.
REP.BY ITS GENERAL MANAGER, REGIONAL OFFICE,
P.B.NO.993, CHAKKAROTHKULAM, WEST HILL P.O.,
KOZHIKODE-673 001.
7 AUTHORISED OFFICER,
REGIONAL OFFICE, P.B.NO.993,CHAKKAROTHKULAM, WEST
HILL P.O., KOZHIKODE-673 001.
8 BRANCH MANAGER,
SOUTH INDIAN BANK LTD, PUTHANATHANI BRANCH,
PUTHANANTHANI P.O., MALAPPURAM DISTRICT-673 001.
BY ADV SHRI.BIJU ABRAHAM (R1-R5)
ADV.SUNIL SHANKAR SC
THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON
25.07.2025 ALONG WITH W.A.NO.1604/2025, THE COURT ON
14.8.2025 DELIVERED THE FOLLOWING:
W.A.Nos.1603 & 1604 of 2025
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN
&
THE HONOURABLE MR.JUSTICE P. V. BALAKRISHNAN
THURSDAY, THE 14TH DAY OF AUGUST 2025 /29TH SRAVANA, 1947
WA NO. 1604 OF 2025
(AGAINST THE JUDGMENT DATED 22.10.2024 IN WP(C)
NO.27236 OF 2018)
APPELLANT:
JOBY THOMAS
AGED 60 YEARS
S/O LATE K.O.THOMAS, KAKKASSERY HOUSE, VELUKARAN
LANE, EAST FORT, THRISSUR, PIN - 680005
BY ADVS.
SRI.PHILIP T.VARGHESE
SRI.THOMAS T.VARGHESE
SMT.ACHU SUBHA ABRAHAM
SMT.V.T.LITHA
SMT.K.R.MONISHA
SMT. NITYA R.
SHRI.JIJO PAUL
SMT.ANJALI SUNIL
SMT.ANJALI G.KRISHNAN
RESPONDENTS:
1 DAINAMMA MATHEW
W/O.AUGUSTINE, EDAKKARA HOUSE, PARAVANNA,
MALAPPURAM DISTRICT, PIN - 676502
2 SHEETHAL MARIYA JOSEPH
D/O. JOSEPH AUGUSTINE, EDAKKARA HOUSE, PARAVANNA,
MALAPPURAM DISTRICT, PIN - 676502
W.A.Nos.1603 & 1604 of 2025
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3 CIVIN V.THEKKETHALA
S/O. VINCENT, BLUE NAIL COTTAGE, PARAPPANANGADI
ROAD, TIRUR P.O., MALAPPURAM, PIN - 676101
4 LATE BALACHANDRA B
REP. BY BIS LEGAL HEIR MEERA. M, BALATHIL HOUSE,
NIRAMARATHU P.O., TIRUR, MALAPPURAM, PIN - 676109
5 SHAJI M JOSEPH
S/O. JOSEPH, KOTTARAM ROAD, B.T. ANGADI, TIRUR,
MALAPPURAM DISTRICT, PIN - 676101
6 THE SOUTH INDIAN BANK LTD
REP. BY ITS GENERAL MANAGER, REGIONAL OFFICE,
P.B.NO.993, CHAKKAROTHKULAM, WEST HILL P.O.,
KOZHIKODE, PIN - 673001
7 AUTHORISED OFFICER
SOUTH INDIAN BANK, REGIONAL OFFICE, P.B.NO.993,
CHAKKAROTHKULAM, WEST HILL P.O., KOZHIKODE, PIN -
673001
8 BRANCH MANAGER
SOUTH INDIAN BANK LTD, PUTHANATHANI BRANCH,
PUTHANANTHANI P.O., MALAPPURAM DISTRICT, PIN -
673001
BY ADV SHRI.BIJU ABRAHAM
ADV.SUNIL SHANKAR (SC)
THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON
25.07.2025 ALONG WITH W.A.NO.1603/2025 THE COURT ON
14.8.2025 DELIVERED THE FOLLOWING:
W.A.Nos.1603 & 1604 of 2025
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ANIL K.NARENDRAN & P.V.BALAKRISHNAN,JJ
.......................................................................
W.A. Nos.1603 & 1604 of 2025
.......................................................
Dated this the 14th day of August 2025
COMMON JUDGMENT
P.V. BALAKRISHNAN,J
These writ appeals are filed challenging the judgment dated
22.10.2024 in W.P.(C)No.27236 of 2018 passed by the learned
Single Judge of this Court. The writ appellants were not parties to
the writ petition and leave was granted by this Court on
27.06.2025 to them, for filing these writ appeals challenging the
afore judgment.
2. The facts in brief, as are necessary for the disposal of
these appeals, are as follows:
M/s.Kakkassery Autos- a partnership with partners Mr.Jolly
Kakkassery, Mr.Vincent T.K. and Mr.Joseph Augustine availed a
loan from South Indian Bank, Ponnani Branch. The loan was
availed by mortgaging 67.75 cents of land in Aloor Village that
belonged to Mr.K.O.Thomas, the predecessor-in-interest of the
appellants. After the death of K.O.Thomas, the property devolved
on his nine legal heirs, including the appellants. The 1st appellant
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in W.A.No.1603 of 2025, who was abroad, had authorised the 2nd
appellant to mortgage only 35 cents of land in the afore property,
through a Power of Attorney executed on 11.07.1999. But, the
entire extent of 67.75 cents was mortgaged on the strength of
the Power of Attorney.
3. When default occurred, the respondent bank initiated
recovery steps against the 67.75 cents of land under the
SARFAESI Act and the property was put in auction sale on
23.10.2009. The writ petitioners are the auction purchasers of
the above mentioned property. The 1st and 2nd writ petitioners are
the wife and daughter of Mr.Joseph Augustine and the 3 rd writ
petitioner is the son of Mr.Vincent T.K., the partners of
Kakkassery Autos. The bank confirmed the sale and issued sale
certificate on 29.12.2012 in favour of the writ petitioners.
Subsequent to the auction sale, the 1st appellant in W.A.No.1603
of 2025 filed O.S.No.208 of 2011 before the Sub Court, Tirur,
seeking a permanent prohibitory injunction restraining the bank
from selling the property of the plaintiff for realisation of the debt
of Kakkassery Autos. He also filed a Securitisation Application,
i.e., S.A.No.3 of 2013, challenging the auction sale conducted on
23.10.2009. In the meanwhile, the respondent bank entered into
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an Assignment Deed on 22.03.2013 with the Asset
Reconstruction Company (India) Limited (for short 'M/s ARCIL'),
whereunder, the bank transferred and released in favour of M/s
ARCIL all financial assistance granted by it to the borrower
including the guarantees executed by co-borrowers, together with
all underlying securities and right, title and interest of the bank.
Item No.1 property i.e., the property having an extent of 67.75
cents, was not assigned to M/s ARCIL since, it was already sold in
auction. The respondent bank was substituted by M/s ARCIL in
the pending proceedings before the Debt Recovery Tribunal
Tribunal and M/s ARCIL issued a notice dated 16.06.2017 stating
that it was cancelling the earlier notice dated 08.07.2008 issued
under Section 13(2) of the SARFAESI Act. In the light of the said
notice, the Securitisation Application was closed by the Tribunal.
4. Since possession of the property was not handed over
to the auction purchasers by the bank, W.P.(C)No.27236 of 2018
was preferred by the auction purchasers seeking a writ of
ceritorari or any other appropriate writ order or direction to the
respondent-bank to transfer the property in favour of the
petitioners and hand over the possession of the same to them.
W.P.(C)No.27236 of 2018 was allowed on 22.10.2024, the
W.A.Nos.1603 & 1604 of 2025
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operative portion of which reads as follows:
"1. The respondents to effect registration with respect to
the sale of the properties mentioned above and also to
hand over the possession of the property to the petitioners
herein, as expeditiously as possible, at any rate, within a
period of two months from the date of receipt of a copy of
this judgment.
2. It is found that the registration as well as the handing
over of possession of the properties in question as above
would be subject to the decision of O.P.(C)No.2319 of 2016
pending before this court as well as O.S.No.208 of 2011
pending before Sub Court, Tirur."
On coming to know about the judgment, the appellants in the
W.A.No.1603 of 2025 preferred R.P.No.1377 of 2024 alleging the
fraud/collusion in obtaining the judgment. But, the learned Single
Judge dismissed the Review Petition on 18.02.2025.
5. Heard the learned counsel for the appellant in
W.A.No.1603 of 2025, the learned counsel for the appellant in
W.A.No.1604 of 2025, the learned counsel for the respondents 1
to 5 and the learned counsel for the South Indian Bank.
6. The learned counsel for the appellants contended that
the appellants were willfully not made parties in the writ petition
and that the impugned judgment is a product of collusion
between the writ petitioners and the bank officials. They argued
that while the Securitisation Application was pending, bank had
assigned the entire rights and liabilities to M/s. ARCIL and
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thereafter, M/s. ARCIL was substituted as the first defendant on
03.11.2015 in the Securitisation Application pending. Thereafter,
M/s.ARCIL issued a demand notice on 16.06.2017 with respect to
all properties, including the 67.75 cents by stating that the same
is issued in supersession of the original notice dated 08.07.2008
which stands cancelled and withdrawn. It was also stated in the
notice that further action taken under Section 13(4) of the
SARFAESI Act stands recalled. It is contended that it is in the
light of the said notice, the Securitisation Application was closed
as infructuous. They further submitted that it is thereafter, the
property was restored to the possession of the appellants in
W.A.No.1603 of 2025 and therefore, the present writ petition filed
without arraying the appellants in the party is nothing, but an
action of deceit. Hence, they submitted that the impugned
judgment cannot be sustained.
7. Per contra, the learned counsel for the party
respondents and the bank submitted that there are no grounds to
interfere with the impugned judgment. They argued that the
appellants are not necessary parties in the writ petition, since the
matter is within the exclusive domain of the writ petitioners and
the bank. They contended that the property in question has been
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sold to the writ petitioners in auction as early as on 23.10.2009
and the sale has been confirmed and sale certificate issued on
29.12.2012. They submitted that the property in question was
not assigned to M/s ARCIL since, it was already sold in auction
and hence, the demand notice dated 16.06.2017 issued by M/s
ARCIL cannot relate to the said property. They also submitted
that the Securitisation Application was disposed off at the
instance of the first appellant in W.A.No.1603/2025 and,
therefore, he cannot now turn back and re-open the matter by
filing the present writ appeal. They further submitted that the
appellants, are all along, trying to protract the SARFAESI
proceedings by filing various writ petitions and the instant
appeals are part of such an attempt.
8. In the instant case, it is an admitted fact that the
property having an extent of 67.75 cents of land in Aloor village,
which is the subject matter of dispute, has been proceeded
against under the SARFAESI Act and was put in auction sale on
23.10.2009. It is also an admitted fact that the writ petitioners
have purchased the said property in the auction and has complied
with all the statutory requirements including the payment of the
bid amount. The materials on record also show that, the sale has
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been confirmed and the sale certificate has been issued in favour
of the writ petitioners as early as on 29.12.2012. It is pertinent to
note that the writ petition filed by the second appellant in
W.A.No.1603 of 2025, as W.P.(C)No.1862 of 2010 during this
period challenging the proceedings, has been dismissed by this
Court by judgment dated 09.10.2012 and that the same has
attained finality. Similarly, no challenge is seen raised by the
appellant in W.A.No.1604 of 2025 against the sale proceedings,
which was confirmed as early as in 2012. As regards the first
appellant in W.A.No.1603 of 2025 is concerned, the records show
that even though he has challenged the sale proceedings by filing
Securitisation Application, i.e., S.A.No.3 of 2013 before the Debt
Recovery Tribunal, Ernakulam, the same has been closed as
infructuous, at his instance himself and the said proceedings has
also attained finality. Even though the appellants have contended
that the Securitisation Application was closed on the basis of a
demand notice dated 16.06.2017 issued by the M/s ARCIL stating
that the original notice dated 08.07.2008 issued under Section 13
(2) of the SARFAESI Act has been recalled, it is very pertinent to
note that the sale has been confirmed in favour of the writ
petitioners and the sale certificate has been issued to them on
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29.12.2012, much before the assets and liabilities were
transferred by the bank to M/s ARCIL on 22.03.2013. Further,
there are also no materials to show that the property having an
extent of 67.75 cents was assigned to M/s ARCIL.
In the facts and circumstances as narrated afore, it can be
seen that the proceedings under the SARFAESI Act, in so far as it
relates to the sale of the property in issue is concerned, has
become final. It is hence, the writ petitioners have approached
this Court seeking a direction for transferring the property in
favour of them and to handover possession. In such
circumstances, we are of the view that the appellants cannot
claim any right or interest over the afore property. Therefore, we
find that there is no illegality or irregularity in the order passed
by the learned Single Judge directing the bank to effect
registration and hand over the property to the writ petitioners.
Ergo, these writ appeals lack merits and same are accordingly
dismissed.
Sd/-
ANIL.K.NARENDRAN, JUDGE
Sd/-
P.V.BALAKRISHNAN, JUDGE
dpk
