Kerala High Court
Binu Vincent vs The Federal Bank Ltd on 9 October, 2025
2025:KER:74662
WP(C) NO.19544 OF 2025 1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE MOHAMMED NIAS C.P.
THURSDAY, THE 9TH DAY OF OCTOBER 2025 / 17TH ASWINA, 1947
WP(C) NO. 19544 OF 2025
PETITIONER/S:
1 BINU VINCENT,
AGED 53 YEARS
S/O LATE M.A VINCENT, MANNANAL HOUSE, PUTTADI P.O.,
ANAKKARA VILLAGE, UDUMBANCHOLA, IDUKKI DISTRICT, PIN -
685551
2 MINI VINCENT,
AGED 57 YEARS
D/O LATE M.A VINCENT, MANNANAL HOUSE, PUTTADI P.O.,
ANAKKARA VILLAGE, UDUMBANCHOLA, IDUKKI DISTRICT, PIN -
685551
BY ADVS.
SHRI.TITUS MANI VETTOM
SRI.P.A.JACOB
SRI.BINNY THOMAS
SHRI.SWAROOP A.P.
RESPONDENT/S:
1 THE FEDERAL BANK LTD.,
REPRESENTED BY ITS BRANCH MANAGER,PUTTADI P.O., IDUKKI
DISTRICT, PIN - 685551
2 RECOVERY OFFICER, DEBT RECOVERY TRIBUNAL-II, ERNAKULAM,
1ST FLOOR, KSHB BUILDING, PANAMPILLY NAGAR, KOCHI, PIN
- 682016
3 M/S. HEADER SYSTEMS (INDIA) LTD.,
CARDAMOM AUCTIONEER, EAST JUNCTION, NEDUMKANDAM,
2025:KER:74662
WP(C) NO.19544 OF 2025 2
IDUKKI, PIN - 685553
4 MAMMACHAN THOPPIL KUNJAPPY,
S/O G. KUNJAPPY, THOPPIL HOUSE, PUTTADY P.O, IDUKKI,
PIN - 685551
BY ADVS.
SRI.PRANOY K.KOTTARAM- FOR R3
SRI.ARUN THOMAS-FOR R4
SHRI.GEORGE MATHEWS
SHRI.SIVARAMAN P.L
SHRI.ATHUL BABU
SMT.CISLY GRASHIOUS
SHRI.SREENAND UDAYAN
SRI.GRASHIOUS KURIAKOSE (SR.)-FOR R3
SHRI.S.KABEER
SRI.MOHAN JACOB GEORGE- SC, FEDERAL BANK
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
07.08.2025, THE COURT ON 09.10.2025 DELIVERED THE FOLLOWING:
2025:KER:74662
WP(C) NO.19544 OF 2025 3
"C.R."
MOHAMMED NIAS C.P., J.
......................................................
W.P(C) No.19544 of 2025
.............................................................
Dated this the 9th day of October, 2025
JUDGMENT
The petitioners contend that the 1st petitioner, as principal
borrower, had availed a loan of Rs. 5,00,000/- (Rupees five lakhs only)
from the 1st respondent bank, which was later enhanced to Rs. 20,00,000/-
(Rupees Twenty Lakhs only) under an OD-CC (Over Draft-Cash Credit)
account, with the 2nd petitioner and M.A. Vincent, Lincy Binu and T.S.
Joseph as co-obligants. T.S.Joseph again availed an Agricultural Medium
Term Loan (AMTL) of Rs. 2,75,000/- (Rupees Two Lakhs Seventy-Five
Thousand Only) and the Federal Kisan Credit (FKC) of Rs. 85,000/- (Rupees
Eighty-Five Thousand Only).
1.1. Apart from the two items of property (27 cents & 28 cents of
land) extended by the 1st petitioner as collateral security, property (3
acres) belonging to T.S. Joseph was also mortgaged to cover the 1 st
2025:KER:74662
petitioner's liability. The liability under the account fell into arrears by
January 2005, and, upon proceedings initiated before the Debt Recovery
Tribunal, Ernakulam, in O.A. No. 31 of 2006, Ext. P1 Recovery Certificate
dated 11.01.2012 was issued for the recovery of Rs. 76,90,252.22/- (Rupees
Seventy-Six Lakh Ninety Thousand Two Hundred Fifty-Two Only) from
the properties described in Schedules A to C therein.
1.2. The petitioners submit that the Recovery Officer issued
Ext.P2 sale proclamation only on 24.05.2016, and the sale proclamation
contained one more additional item of property which is a parcel of land
having an extent of 5 Acre 2 cents and this property was not included in
the Recovery certificate, which was challenged before the DRT in Appeal
No. 5/2016 and before DRAT in M.A.24/2019 and before this court in
W.P(C) No. 16681/2022 and W.A. No. 1352/2024, raising the issue on
different grounds and they failed to obtain any favourable orders.
1.3. Thereafter, an auction sale was conducted on 25.07.2016,
wherein respondents 3 and 4 purchased items 3 and 2, for an amount of
Rs. 75.6 lakhs and Rs. 30.2 lakhs, respectively. Advocate Commissioner was
appointed by Ext. P3 order dated 27.03.2025, and the property was handed
over to the auction purchasers on 11.04.2025. It is contended that the
2025:KER:74662
proclamation and auction were issued and conducted long after the
expiry of the statutory limitation under Rule 68B of the Second Schedule
to the Income Tax Act, 1961, (hereinafter "IT Act") which, by virtue of
Section 29 of the Recovery of Debts Due to Banks and Financial
Institutions Act, 1993, (hereinafter "the RDDB Act") applies to recovery
proceedings under the said Act. The said provision mandates that no sale
of immovable property shall be made after the expiry of three years from
the end of the financial year in which the order giving rise to the demand
became conclusive.
1.4. The petitioners point out that the Recovery Certificate,
having been issued on 11.01.2012, the financial year ended on 31.03.2012,
and the three-year period expired on 31.03.2015. The proclamation of sale
issued on 24.05.2016 and the auction conducted on 25.07.2016 were
therefore more than one year beyond the statutory limit, rendering them
illegal and void. The petitioners contend that the filing of Appeal No.
5/2016 before the DRT under Section 30 of the RDDB Act on 11.07.2016
would not have the effect of extending or excluding the limitation, since
it was filed after the expiry of the period prescribed in Rule 68B.
2025:KER:74662
1.5. It is further urged that the provision is mandatory in nature,
as held by the Division Bench of this Court in Ratheesh M. N. & Anr. v.
Debt Recovery Tribunal (Kerala & Lakshadweep) and Others [2019 (2) KHC
134], wherein it was categorically declared that sales effected beyond the
period stipulated under Rule 68B are illegal and void. Reliance is also
placed on C.N. Paramsivam & Anr. v. Sunrise Plaza & Ors. [2013 (9) SCC
460], where the Hon'ble Supreme Court reiterated that a sale in violation
of statutory requirements is a nullity in law.
1.6. The petitioners also cite the decisions in Rajasthan State
Industrial Development and Investment Corporation v. Subhash Sindhi Co-
operative Housing Society & Ors. [(2013) 5 SCC 427] to contend that if a
proceeding is void ab initio, it is inoperative, nugatory and without legal
force; and can be ignored even in collateral proceedings, and there is no
requirement to formally set it aside. Consequently, all proceedings and
orders rooted in the ownership rights claimed under the auction are also
nullities in the eyes of law. The petitioners also rely on Shree Chamundi
Mopeds Ltd v. Church of South India Trust Association, CSI Cinod
Secretariat, Madras (1992 3 SCC), to contend that principles in Ratheesh
2025:KER:74662
(supra) will have to be followed despite the Apex Court staying the
operation of the judgment.
1.7. The petitioners submit that the acts impugned violate Article
300A of the Constitution of India, which mandates that no person shall be
deprived of his property save by authority of law. The 2 nd respondent,
Recovery Officer, in the discharge of his statutory duties, was bound to act
strictly in accordance with law and in a fair manner, and his failure to do
so renders his actions amenable to the writ jurisdiction of this Court.
1.8. In the above circumstances the petitioners pray to declare
that Ext.P2 sale proclamation and the auction conducted under the same
is illegal, void and non est and all continuation orders, proceedings and
actions following the auction are also void and to set aside the sale
certificates issued to respondents 3 & 4, and direct reversal of all
consequential revenue records and mutations made in their favour.
2. The 1st respondent, Federal Bank Ltd, in the counter affidavit,
contends that the writ petition is not maintainable either in law or on the
facts. It is submitted that the 1st respondent is a private bank and not an
authority or instrumentality of the State within the meaning of Article 12
of the Constitution of India, and hence not amenable to the writ
2025:KER:74662
jurisdiction of this Court. Reliance is placed on the judgment of the
Hon'ble Supreme Court in Federal Bank Limited v. Sagar Thomas [(2003)
10 SCC 733], wherein it has been categorically held that the Federal Bank
is not a State under Article 12.
2.1. It is further contended that the present writ petition is a
gross abuse of the process of law. The recovery process is now challenged
pursuant to Ext. R1(b) award passed by the Lok Adalath in O.A. No. 31 of
2006 before the Debts Recovery Tribunal, Ernakulam, which was signed by
the petitioners on consent. On default in complying with the award, the
bank initiated recovery through Securitisation measures and by issuance
of a Recovery Certificate. Pursuant thereto, the Recovery Officer issued a
demand notice on 12.03.2012, followed by Ext. R1 (d) notice for settling
the sale proclamation on 09.03.2015 and Ext.R1(e) attachment order dated
02.02.2015. The sale proclamation was issued on 24.05.2016 as evidenced
by Exhibit R1(f). Against the Securitisation proceedings, the father of the
petitioner had approached the DRT by filing S.A. No. 520/2012.
2.2. It is pointed out that the petitioners had challenged the sale
notice by filing Appeal No. 5 of 2016 before the DRT, Ernakulam, which
was later renumbered as Transfer Appeal No. 1 of 2017 and dismissed by
2025:KER:74662
Ext.R1(i) order dated 31.07.2018. Against the said dismissal, the
petitioners approached this Court in W.P.(C) No. 26972 of 2018, which was
disposed of, directing them to avail the remedy before DRAT, Chennai.
The DRAT dismissed their appeal on 12.05.2022. The petitioners also filed
W.P.(C) No. 40389 of 2018, which was dismissed on 03.01.2019 vide Ext.
R1(k).
2.3. It is further submitted that W.P.(C) No. 16681 of 2022 filed by
the petitioners challenging the DRAT order was dismissed by this Court
on 25.07.2024 vide Ext. R1(m), and the Writ Appeal No. 1352 of 2024
preferred by them was also dismissed on 08.10.2024 vide Ext.R1(n). In the
meantime, the property sold in the auction was registered in the name of
the auction purchasers, and possession was delivered.
2.4. The plea now raised regarding Rule 68B of the Second
Schedule to the Income Tax Act, 1961, is an afterthought, raised solely for
the purpose of filing this writ petition. It is submitted that the law is well
settled that the Limitation Act, 1963 applies to applications before the
DRT, including execution proceedings before the Recovery Officer, by
virtue of Section 24 of the RDDB Act, as held in K. Kutaguptan v. Canara
Bank [MANU/KE/0834/2009], affirmed by the Division Bench reported in
2025:KER:74662
MANU/KE/1860/2017, and reiterated in the Ext. R1(q) judgment dated
06.07.2022 in W.P.(C) No. 13975 of 2022. The 1st respondent further relies
on Geevarghese P. John v. Federal Bank [2024 KHC 7312], wherein this
Court held that Rule 68B of the Second Schedule to the Income Tax Act
does not apply to the recovery of amounts determined as payable to a
bank under the RDDB Act. Thus, it is contended that all the actions of the
bank are fully legal, and the writ petition is only to be dismissed.
2.5. The learned counsel for the 1st respondent bank relies on
Balvant N. Viswamitra and Ors. v. Yadav Sadashiv Mule (Dead) through
LRS. and Ors. [(2004) 8 SCC 706], Rafique Bibi (Dead) by LRS. v. Sayed
Waliuddin (Dead) by LRs and Ors. [(2004) 1 SCC 287], Tottempudi Salalith v.
State Bank of India and Others [(2024) 1 SCC 24].
3. The 3rd respondent, the auction purchaser of the property sold
by the Recovery Officer, argues that the writ petition is belated and liable
to be dismissed for laches. The challenge now raised could and ought to
have been made in earlier proceedings before the DRT, DRAT, and this
Court, all of which concerned the same parties and the same recovery
proceedings. The petitioners, having failed in all early proceedings,
cannot now raise this plea for the first time. The bar of constructive res
2025:KER:74662
judicata applies, as explained in Celir LLP v. Sumati Prasad Bafna and Ors.
(MANU/SC/1343/2024). The petitioners are raising this particular issue
after a period of 9 years from the proclamation of sale. It is a trite law that
if there is an unexplained delay in filing a writ petition, the Court should
decline to intervene and grant relief in exercise of its writ jurisdiction, as
explained by the Apex Court in State of M.P.v Nandlal Jaiswal [1986 KHC
708].
3.1. The 3rd respondent further states that the property was
registered in its name on 23.12.2024, and possession was handed over.
Substantial improvements worth about Rs. 30,00,000/-(Rupees Thirty
lakhs only) were made thereafter, including fencing, labour mobilisation,
pruning, purchase of fertilisers and equipment. The property is a tea
plantation that had long been neglected, and improvements were
necessary to restore and maintain it. Photographs evidencing the
condition before and after improvements are produced. It is contended
that allowing the petitioners' plea at this stage would cause grave
prejudice to the 3rd respondent and undermine the sanctity of auction
proceedings conducted by a competent authority in accordance with law.
2025:KER:74662
3.2. On merits, it is submitted that there is no breach of Rule 68B.
The attachment was on 02.02.2015 and the auction on 25.07.2016, which is
within three years. Further, the time under Rule 68B runs from when the
order giving rise to the demand becomes conclusive, which, in this case,
was only after the dismissal of W.A. No. 1352 of 2024 on 08.10.2024.
Moreover, by the amendment effective from 01.09.2019, the period in Rule
68B was extended from three years to seven years, and the sale completed
before 2024 falls within this extended period.
3.3. The 3rd respondent relies on the decisions in Nandlal Jaiswal
(supra), Acre Polymers Private Limited v. M/s Alphine Pharmaceuticals
Private Limited and Others (2021 KHC 6783), Forward Construction Co. v.
Prabhat Mandal (Regd), Andheri (1986 KHC 598).
4. Heard Sri. Titus Mani Vettom, the learned counsel for the
petitioners, Sri.Mohan Jacob George, the learned counsel for the
respondent bank, Sri Gracious Kuriakose, the learned Senior Counsel for
the 3rd respondent, instructed by Sri. Pranoy K Kottaram and Sri. Arun
Thomas for the 4th respondent.
4.1. The essential contention raised by the writ petitioners,
challenging the sale dated 25.07.2016 conducted by the 1 st respondent,
2025:KER:74662
Federal Bank, is that the sale is vitiated as it was effected beyond the
period prescribed under Rule 68B of the Second Schedule to the Income
Tax Act, 1961. Rule 68B of the Second Schedule of the Income Tax Act,
1961, is extracted below:
"Rule 68B of the Second Schedule of the Income Tax
Act, 1961: Time limit for sale of attached immovable
property:
68B. (1) No sale of immovable property shall be made under this
Part after the expiry of three years from the end of the financial
year in which the order giving rise to a demand of any tax,
interest, fine, penalty or any other sum, for the recovery of
which the immovable property has been attached, has become
conclusive under the provisions of section 245-I or, as the case
may be, final in terms of the provisions of Chapter XX:
Provided that where the immovable property is required to be
re-sold due to the amount of highest bid being less than the
reserve price or under the circumstances mentioned in rule 57
or rule 58 or where the sale is set aside under rule 61, the
aforesaid period of limitation for the sale of the immovable
property shall stand extended by one year.
(2) In computing the period of limitation under sub-rule (1), the
period--
2025:KER:74662
(i ) during which the levy of the aforesaid tax, interest,
fine, penalty or any other sum is stayed by an order or
injunction of any court; or
(ii ) during which the proceedings of attachment or sale of
the immovable property are stayed by an order or injunction of
any court; or
(iii ) commencing from the date of the presentation of any
appeal against the order passed by the Tax Recovery Officer
under this Schedule and ending on the day the appeal is
decided, shall be excluded :
Provided that where immediately after the exclusion of the
aforesaid period, the period of limitation for the sale of the
immovable property is less than 180 days, such remaining
period shall be extended to 180 days, and the aforesaid period of
limitation shall be deemed to be extended accordingly.
(3) Where any immovable property has been attached under
this Part before the 1st day of June, 1992, and the order giving
rise to a demand of any tax, interest, fine, penalty or any other
sum, for the recovery of which the immovable property has been
attached, has also become conclusive or final before the said
date, that date shall be deemed to be the date on which the said
order has become conclusive or, as the case may be, final.
(4) Where the sale of immovable property is not made in
accordance with the provisions of sub-rule (1), the attachment
order in relation to the said property shall be deemed to have
2025:KER:74662
been vacated on the expiry of the time of limitation specified
under this rule."
4.2. While the petitioners rely on the judgment of the Hon'ble
Supreme Court in C.N. Paramsivam (supra) and Ratheesh (supra), the 1st
respondent relies on the judgment of this Court in K. Kutaguptan (supra),
affirmed by the Division Bench as reported in MANU/KE/1860/2017,
South Indian Bank Ltd. v. Recovery Officer (W.P.(C) No. 13975/2022) and
Geevarghese (supra).
5. Going through the provisions, judgments rendered by the
Supreme Court, this Court, and other High Courts, namely C.N.
Paramsivam (supra), K. Kutaguptan (supra), South Indian Bank Ltd.
(supra), Gheeverghese P. John v. Federal Bank (supra), Mitexo v. Canara
Bank [MANU/MH/0668/2014], J.N. Krishnan v. Branch Manager, Canara
Bank [2011 SCC OnLine Mad 828], and V. Chakrapani v. State Bank of India
[AIR 2011 AP 27], it follows that the RDDB Act itself provides for
attachment and sale of properties under Section 25 without prescribing
any time limit, and importing Rule 68B would run contrary to this
scheme. The references in Rule 68B to "financial year," "finality under
Section 245-I," and "Chapter XX" of the Income Tax Act are peculiar to tax
2025:KER:74662
recovery proceedings and wholly alien to the debt recovery mechanism
under the RDDB Act. The incorporation of the Second and Third Schedules
to the Income Tax Act through Section 29 is expressly qualified by the
words "as far as possible" and "with necessary modifications," signifying
that only those provisions which aid and facilitate recovery can be
applied, not those which would stultify or defeat it. The provisions of the
Income Tax Rules are therefore incorporated into recovery proceedings
under the RDDB Act only to ensure procedural fairness and transparency
in the actions of the Recovery Officer, to provide a structured framework
and prevent arbitrariness, not to impose substantive restrictions.
5.1 The legislative object of the RDDB Act is to ensure speedy and
effective recovery of debts due to banks and financial institutions;
subjecting sales to a rigid three-year or four-year bar would frustrate that
object. The RDDB Act is a self-contained code that provides its own
framework for adjudication, issuance of recovery certificates, and
execution by the Recovery Officer, and therefore, there is no statutory
basis for importing any period of limitation from the Income Tax Rules.
Yet another reason why Rule 68B cannot be read into the scheme of the
RDDB Act is that Section 31, which provides for the transfer of pending
2025:KER:74662
cases, and the jurisdictional threshold under the Act, make no distinction
in limitation based on the value of the claim. There is nothing in the Act
to suggest that Parliament ever intended to prescribe different limitation
periods for claims below Rs.10 lakhs and those above Rs. 10 lakhs;
importing Rule 68B into the RDDB framework would therefore create
inconsistencies and defeat procedural uniformity.
5.2. Moreover, the proceedings under the Income Tax Act are
between the revenue and the assessee, where the Tax Recovery Officer
functions as an employee of the State, whereas proceedings under the
RDDB Act are adversarial in nature, adjudicated by an independent
Tribunal, and executed by a Recovery Officer. The bank or financial
institution has no control over the actions or administrative functioning
of the Recovery Officer, and hence it would be highly unjust to preclude
recovery merely because the Officer was unable to complete the sale
within the time frame contemplated under Rule 68B. Delays may occur
due to circumstances such as a vacancy in the office of the Recovery
Officer, transfer of jurisdiction, administrative backlog, or even
obstructive tactics by the debtor, factors beyond the creditor's control. To
2025:KER:74662
penalise the bank or financial institution for such procedural delays
would defeat the purpose of the statute and unjustly enrich the defaulter.
5.3. It has, therefore, to be held that Rule 68B of the Second
Schedule to the Income Tax Act, 1961, has no mandatory application to
recovery proceedings under the RDDB Act. It is also relevant that under
Sections 19(22) and 25 of the RDDB Act, the Recovery Officer derives
jurisdiction to initiate recovery measures only after the recovery
certificate attains finality. Hence, the time frame in Rule 68B, which is
linked to the 'order giving rise to demand' under the Income Tax Act,
cannot logically apply to proceedings initiated upon a recovery certificate
under the RDDB Act. The consistent view emerging from the decisions of
this Court and other High Courts is that Section 29 of the RDDB Act adopts
the procedural framework of the Second and Third Schedules only to the
extent they align with the object of expeditious recovery under the RDDB
Act. The time limit of three years, later extended to four years and further
to seven years, is merely directory and not mandatory, since Rule 68B
imposes a duty upon the Recovery Officer but confers no corresponding
right upon the debtor, nor prescribes any consequence for delay. The
limitation applicable to recovery proceedings under Section 19 of the
2025:KER:74662
RDDB Act would, therefore, be governed by Article 136 of the Limitation
Act, 1963, as recognised in Gheeverghese P. John. (supra).
5.4. It is to be noted that this Court, while rendering the
judgment in Ratheesh (supra), did not consider the judgment of the
Hon'ble Supreme Court in C.N. Paramsivam (supra) and the division bench
judgment of this Court, Kutaguptan (supra), even though it was noticed. It
was also held that under Rule 68B of the Second Schedule to the Income
Tax Act, 1961, the limitation period for sale was extended from three to
four years by Notification No. S.O. 164 (E) dated 1.03.1996, which has been
in force since then, but the same was not noticed in Ratheesh (supra). Be
that as it may, since the appeal against the judgment is still pending
before the Apex Court, I deem it appropriate not to deal with the said
judgment any further. Given the above, the contention of the petitioners
that the sale is bad as it was conducted beyond the time granted in the
provision concerned cannot be accepted, and the same is hereby rejected.
6. The next question that arises is, even assuming the sale was
conducted beyond the time, can the petitioners urge that the entire
actions are void. The learned counsel for the petitioners argues that if on
the limitation aspect they succeed, the entire proceedings taken till now
2025:KER:74662
being void must be declared so. For this purpose, he relies on the
judgments in Chamundi Mopeds Ltd (supra), Govt. of A.P, and Others v. N.
Rami Reddy (AIR 2001 AP 226), Subhash Sindhi Cooperative Housing
Society (supra). This is opposed by the learned Standing Counsel for the
bank, contending that there is no question of the orders passed, as
noticed above, being void, and there is no contention of lack of inherent
authority to pass the orders impugned. Under such circumstances, even
if they are found to be illegal, they cannot be said to be void. The illegal
orders passed are to be correct in appeal, invoking the statutory scheme
and not by challenging them as void. The petitioners, having failed in
their attempts to challenge the actions of the secured creditor, cannot be
allowed to contend that their actions are void at this distance of time. The
learned counsel also relies on the following judgments: Rafique Bibi
(supra), Balvant (supra).
6.1. The principle emerging from the decisions on the point,
including those in Rafique Bibi (supra) and Balvant (supra), is that not
every illegality or procedural irregularity renders a decree void or
without jurisdiction. A decree becomes a nullity only when it is passed by
a court that inherently lacks jurisdiction over the subject matter or the
2025:KER:74662
parties, and such a lack of jurisdiction is apparent on the face of the
record. Mere errors in the exercise of jurisdiction, including those arising
from incorrect appreciation of law, limitation, or procedure, at best
render the decree illegal or irregular, but not void. Such decrees must be
challenged through appropriate appellate or review proceedings and
cannot be collaterally attacked in execution or incidental proceedings.
6.2 The Supreme Court has underscored that decrees of
competent courts, even if erroneous, retain their binding force unless set
aside in due process, and that the executing court cannot go behind or
invalidate such decrees on grounds of procedural or legal error. This
distinction between a "void decree" and an "illegal decree" ensures
finality of judicial decisions and prevents endless collateral challenges
under the guise of jurisdictional defects. For these reasons, the contention
that the entire actions are void has to be rejected, and I do so.
7. I also find considerable force in the argument of the learned
Senior counsel for the auction purchaser, Sri. Gracious Kuriakose, that the
writ petition is to be dismissed on the principles of delay and laches as the
sale took place on 25.07.2016, and the challenge to that on this ground is
made only on filing this writ petition as on 26.05.2025. Based on the
2025:KER:74662
decisions in Arce Polymers (supra), Nandlal Jaiswal (supra)it is argued
that the law on delay and laches is well settled that the jurisdiction under
Article 226 being discretionary, relief can be declined where there is gross
or unexplained delay, particularly when the petitioners have acquiesced
in the action and allowed third-party rights or settled positions to come
into existence; as held in Nandlal Jaiswal (supra), if by the time the writ
petition is filed the respondents have altered their position by investing
substantial resources and acting on the impugned decision, the Court
would not interfere since it would cause hardship and inequity, delay
coupled with acquiescence disentitling the petitioners from any relief,
save in cases of manifest illegality or violation of fundamental rights
where delay is not an absolute bar; similarly, in Arce Polymers (supra) , the
Supreme Court reiterated that equity aids the vigilant and not those who
slumber over their rights, and where a borrower kept silent and
permitted auction proceedings to culminate in transfer of property to
bona fide third-party purchasers who had further invested, the challenge
was barred by laches, since courts will not unsettle completed
transactions or prejudice innocent third parties on account of belated
claims.
2025:KER:74662
7.1. The learned counsel also relied on the principles of Celir LLP
(supra) and Forward Construction Co. (supra) which deal with the question
of constructive res judicata, wherein it has been held that the doctrine,
rooted in the Henderson Principle, embodies the broader concept of
procedural fairness, judicial efficiency, and finality in litigation by
mandating that all claims and issues which could and ought to have been
raised in earlier proceedings must be raised therein, and failure to do so
amounts to abuse of process. The Supreme Court in Celir LLP (supra)
explained that this doctrine, enshrined in Explanation VII to Section 11 of
the CPC, is based on the maxim interest reipublicae ut sit finis litium--that in
the interest of the State, there must be an end to litigation, and no party
should be vexed twice for the same cause. It was further held that issues
once raised and later abandoned are deemed waived and cannot be
revived in subsequent proceedings, as such conduct undermines the
finality of judgments and encourages strategic or vexatious litigation.
7.2. Similarly, in Forward Construction Co. (supra), the Court held
that Explanation IV to Section 11 CPC deems any matter which might and
ought to have been made a ground of attack or defence in a former suit as
having been directly and substantially in issue therein, and that an
2025:KER:74662
adjudication is conclusive not only on matters actually decided but also
on those which could have been litigated as part of the same controversy.
Both decisions thus reaffirm that constructive res judicata bars re-
litigation of matters that were or could have been raised earlier, thereby
ensuring judicial efficiency, finality of adjudication, and preventing abuse
of process.
Resultantly, and for all the reasons aforestated, the writ petition
must fail on all counts and is dismissed.
Sd/-
MOHAMMED NIAS C.P.
JUDGE
okb/
2025:KER:74662
APPENDIX OF WP(C) 19544/2025
PETITIONER EXHIBITS
Exhibit-P1 THE TRUE COPY OF THE RECOVERY CERTIFICATE DT.
11-01-2012
Exhibit-P2 TRUE COPY OF THE PROCLAMATION OF SALE DATED
24-05-2016
Exhibit-P3 THE TRUE COPY OF THE ORDER DT. 27-03-2025 OF
APPOINTMENT OF ADVOCATE COMMISSION
RESPONDENT EXHIBITS
Exhibit-R1(g) Copy of the S.A.No.520/2012 filed before the
DRT, Ernakulam
Exhibit-R1(a) Copy of the O.A.No.31/2006 filed before the
DRT, Ernakulam including documents
Exhibit-R1(b) Copy of the Award dated 20.02.2010 passed by
the Lok Adalath in O.A. No.31/2006
Exhibit-R1(c) Copy of the demand notice dated 12.03.2012
issued by the Recovery Officer to the
Petitioner and the other Defendants in the
O.A
Exhibit-R1(d) Copy of the notice for settling sale
proclamation dated 09.03.2015
Exhibit-R1(e) Copy of the attachment order dated 02.02.2015
Exhibit-R1(f) Copy of sale proclamation dated 24.05.2016
Exhibit-R1(h) Copy of the Memorandum of Appeal No.5/2016
filed before DRT, Ernakulam
Exhibit-R1(i) Copy of the final order dated 31.07.2018
passed by DRT-II, Ernakulam
Exhibit-R1(j) Copy of the judgment dated 19.11.2018 in W.P.
Exhibit-R1(k) Copy of the judgment dated 03.01.2019 in W.P.
Exhibit-R1(l) Copy of the order dated 12.05.2022 of DRAT,
Chennai dismissing the Appeal i.e.
M.A.No.24/2019 (which was disposed off along
with M.A.No.23/2019 as per the common order)
Exhibit-R1(m) Copy of common judgment dated 25.07.2024 in
W.P.(C)No.16818/ 2022 and W.P.(C)
Exhibit-R1(o) Copy of the judgment in Kutaguptan vs Canara
Bank reported in MANU/KE/0834/2009
2025:KER:74662
Exhibit-R1(p) Copy of the judgment in K. Kutaguptan vs.
Canara Bank and ors. Reported in
MANU/KE/1860/2017
Exhibit-R1(q) Copy of judgment dated 06.07.2022 in W.P.(C)
Exhibit-R1(n) Copy of the judgment dated 08.10.2024 IN W.A.
Exhibit-R1(r) Copy of the judgment of the Hon'ble Court in
Geevarghese P. John. Vs. Federal Bank
reported in 2024 KHC 7312
Exhibit R3(a) Photographs of the condition of the property
