Kerala High Court
Pallakkkanummar Haji vs Asst. General Manager Of Asset Recovery ... on 3 March, 2025
2025:KER:17856
RFA (MISC.) NO. 3 OF 2023
1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
MONDAY, THE 3RD DAY OF MARCH 2025 / 12TH PHALGUNA, 1946
RFA (MISC.) NO. 3 OF 2023
AGAINST THE ORDER IN I.A.NO.1657/2015 IN OS NO.169
OF 2013 OF SUB COURT, PAYYANNUR
APPELLANTS/RESPONDENTS 1 TO 9:
1 PALLAKKKANUMMAR HAJI,
S/O.MOIDEENKUTTY, TALIRAMBA AMSOM
TRICHAMBARAM DESOM P.O TALIPARAMBA,
KANNUR DISTRICT,(DIED),
PIN - 670141
2 PUTHIYAVEETIL NARAYANAN,
AGED 75
S/O.LAKSHMIAMMA, RESIDING AT KADANNAPPALLI
AMSOM, CHERUVUCHERY AMSOM DESOM,
CHANDAPPURA, KADANAPPALLI P.O,
KANNUR DISTRICT, PIN - 670501 (DIED)
3 FATHIBI,
AGED 63
W/O. UMMAR HAJI PALLAKKAN,
TALIRAMBA AMSOM, TRICHAMBARAM DESOM P.O
TALIPARAMBA, KANNUR DISTRICT,
PIN - 670141
4 MOIDU,
AGED 48
S/O. UMMAR HAJI, PALLAKKAN, TALIRAMBA AMSOM
TRICHAMBARAM DESOM P.O TALIPARAMBA,
KANNUR DISTRICT,PIN - 670141
5 HAJARA,
AGED 46
D/O. UMMAR HAJI, PALLAKKAN, TALIRAMBA AMSOM
TRICHAMBARAM DESOM P.O TALIPARAMBA,
KANNUR DISTRICT, PIN - 670141
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RFA (MISC.) NO. 3 OF 2023
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6 SHAKKIR ALI,
AGED 44
S/O. UMMAR HAJI, PALLAKKAN, TALIRAMBA AMSOM
TRICHAMBARAM DESOM P.O TALIPARAMBA,
KANNUR DISTRICT, PIN - 670141
7 SHABIL,
AGED 41
S/O. UMMAR HAJI, PALLAKKAN, TALIRAMBA AMSOM
TRICHAMBARAM DESOM P.O TALIPARAMBA,
KANNUR DISTRICT, PIN - 670141
8 TAJUNNISSA
AGED 39
D/O. UMMAR HAJI, PALLAKKAN, TALIRAMBA AMSOM
TRICHAMBARAM DESOM P.O TALIPARAMBA,
KANNUR DISTRICT, PIN - 670141
9 TASNI,
AGED 31
D/O. UMMAR HAJI, PALLAKKAN, TALIRAMBA AMSOM
TRICHAMBARAM DESOM P.O TALIPARAMBA,
KANNUR DISTRICT, PIN - 670141
BY ADVS.
AJITH VISWANATHAN
SHIBU JOSEPH
RESPONDENTS/PETITIONER AND RESPONDENTS 10 TO 12:
1 ASST. GENERAL MANAGER OF ASSET RECOVERY BRANCH
FEDERAL BANK LTD.,
THANKARAJ P.K, AGED 77,
S/O. KURIAKOSE, ERNAKULAM.,
PIN CODE - 682031
2 KATTINGAL MUHAMMAD RAFEEQ
AGED 39
S/O. ALIYA KUNNATHUNAD TALUK,
VENGOLA VILLAGE ALLAPRAKARAYIL,
P.O ALLAPRA, ERNAKULAM DISTRICT,
PIN CODE - 683556
3 RASINA
AGED 42
W/O. ASHARAF, RESIDING AT ALUVA TALUK,
ALUVA EAST VILLAGE, ALUVA KARAPIL, P.O ALUVA
ERNAKULAM DISTRICT, PIN CODE - 683101
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4 ASHARAF. K.A
AGED 46
S/O. ALIYAR RESIDING AT ALUVA TALUK,
ALUVA EAST VILLAGE, ALUVA KARAPIL, P.O.
ALUVA, ERNAKULAM DISTRICT, PIN CODE - 683101
BY ADVS.
SUNIL SHANKAR A
DEVAYANI NAIR T.H.(K/1531/2019)
VIDYA GANGADHARAN(K/000424/2020)
THIS REGULAR FIRST APPEAL(MISCELLANEOUS) HAVING
BEEN FINALLY HEARD ON 03.03.2025, THE COURT ON THE SAME
DAY DELIVERED THE FOLLOWING:
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RFA (MISC.) NO. 3 OF 2023
4
JUDGMENT
Dated this the 3rd day of March, 2025
This regular first appeal (miscellaneous) has been
filed challenging order in I.A.No.1657/2015 in
O.S.No.169/2013 on the files of the Sub Court, Payyannur.
The appellants are the original 1st plaintiff and the legal
representatives of the original 2nd plaintiff in the above suit
and the 1st respondent is the claim petitioner in
I.A.No.1657/2015 and the other respondents are defendants
in the above suit.
2. Heard the learned counsel for the
appellants/2nd plaintiff and additional plaintiffs 3 to 9 as well
as the learned counsel appearing for the 1st respondent/claim
petitioner.
3. I shall refer the parties in this appeal with
reference to their status before the trial court, hereinafter for
easy reference.
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4. In this matter, the original plaintiffs filed a
suit against the defendants claiming Rs.38,45,275/- and the
same was decreed ex parte on 21.02.2023 and the property
which is covered by the claim petition also was attached in
the above suit. Thereafter, the 1 st respondent, Assistant
General Manager of Assets Recovery Branch, Federal Bank
Ltd., filed a petition under Order XXXVIII Rule 8 of the CPC
to lift the attachment and the contention as could be
extracted in the order of the learned Sub Judge dated
21.02.2023 is as under:
"2. The petition runs as follows:-
The petitioner is the Federal Bank represent
through its Assistant Manager. Respondents are
the plaintiffs and defendants in the suit. Petition
schedule property was absolutely belonging to
respondent Nos.10 and 11. They availed credit
facility from the petitioner's bank by mortgaging
the property vide letter dated 26.04.2012 as a
security to the loan. Owing to the non-repayment,
their account was turned NPA. Accordingly, the
petitioner issued a demand notice under the
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SARFAESI. On 09.05.2013, the same has been
published on 17.05.2012. Thereafter 07.12.2013,
the petitioner took the property in possession, the
same was also published on 13.12.2013. After
complying the legal formalities under the
SARFAESI Act, now the petitioner is in absolute
jenm and right over the property in question.
Nobody other than the petitioner has got any
right, interest or title over the petition schedule
property. Now the petitioner came to know that
said property is attached by the Court vide order
in IA 2267/2013 in OS No.169/2013. If the
attachment is not lifted, the petitioner will be put in
irreparable injury and hardship. The claim
petitioner suspect that the suit is result of
collusion between the plaintiff and defendant to
defeat the claim of the petitioner over the
property."
5. The plaintiffs opposed the prayer therein.
The trial court recorded evidence as that of CPW1 and
CPW2 and marked Exts.B1 to B18. Finally, the trial court
allowed I.A.No.1657/2015 and lifted the attachment in
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I.A.No.2267/2013 finding that the attached property is a
secured asset of the Bank, which has been taken in
possession by the Bank for the due under the Securitization
and Reconstruction of Financial Assets and Enforcement of
Security Interest Act, 2002 (hereinafter referred to as
'SAFAESI Act' for short).
6. The learned counsel appearing for the claim
petitioner/Bank would fairly submit that even though the
property has been taken into possession, with a view to
secure the liability towards the Bank, so far property has not
auctioned. He also fairly submitted that if any amount in
excess of the debt due to the Bank would be available on
auction of the property, the same would be deposited before
the trial court.
7. The learned counsel for the additional
plaintiffs also did not dispute the liability with the Bank. But
according to the learned counsel for the additional plaintiffs,
since the property not sold and the property would fetch more
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value than the amount due towards the Bank, the attachment
shall be maintained insofar as the amount in excess, if any.
8. In this matter, going by Exts.B1 to B18
documents, supported by the evidence given by CPW1 and
CPW2, the creation of equitable mortgage by deposit of title
deeds, by executing loan agreement and guarantee
agreement, could be gathered. Thereafter, for non-payment
of the loan agreement, Bank took possession of the property
under the SARFAESI Act. Now the Bank decided to sell the
property by public auction to realise the debt due to the Bank.
It is pointed out by the learned counsel for the claim
petitioner/Bank that because of the attachment in this
petition, the sale could not be materialised for want of
prospective buyers.
9. On scrutiny of the matter, it is discernible
that the property under attachment in this suit is the subject
matter of mortgage to the claim petitioner and they took
possession of the same under the SARFAESI Act. Therefore,
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the bank, who is having first charge on the property, has
every right to put the same for sale by public auction. At the
same time, if any amount in excess of the amount due to the
Bank would be getting on sale, the same shall go in favour of
the defendants who are the owners of the property. Since
there is a suit and a decree and an order of attachment, the
said amount shall be proceeded towards the decree debt in
favour of the additional plaintiffs. In the said circumstances, a
practical order by modifying the order under challenge is
required.
10. Accordingly, this regular first appeal stands
allowed in part and the order impugned is modified as under:
It is held that the claim petitioner has the first charge
over the property, which in fact taken possession by the Bank
under the SARFAESI proceedings, and they can sell the
property by public auction and on sale, if any amount in
excess of the debt due to the bank is available, the claim
petitioner shall deposit the same before the Sub Court,
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Payyannur, with direction to the Sub Judge to adjust the
amount in accordance with law, in favour of the additional
plaintiffs who got a decree in their favour. Accordingly, sale of
the property is permitted, lifting the attachment holding that
the same will not stand in the way of sale by the Bank and on
selling the property, the amount, if any, in excess would be
getting, the same shall be deposited before the Sub Court,
Payyannur. The sub judge is directed to adjust the money in
favour of the additional plaintiffs towards decree debt, as per
law, after notice to the defendants.
All interlocutory applications pending in this regular
first appeal stands dismissed.
Registry is directed to forward a copy of this
judgment to the jurisdictional court forthwith.
Sd/-
A. BADHARUDEEN
JUDGE
nkr
