IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN MONDAY, THE 22ND MARCH 2010 / 1ST CHAITHRA 1932 WP(C).No. 27256 of 2009(O) -------------------------- C.A. NO.1/09 IN OS.2/2007 of SUB COURT, PERUMBAVOOR .................... PETITIONER(S): ------------------- M.P.JACOB, MANGALAM HOUSE,CHITTOOR ROAD,ERNAKULAM. BY ADV. MR.FEBIN J.VELUKARAN RESPONDENT(S): ------------------------- 1. PRASAD PUNNOOSE, MANGALAM HOUSE, KALADY VILLAGE, ERNAKULAM DISTRICT. 2. M.P.PUNNOOSE, MANGALAM HOUSE,ALATTUCHIRA, KODANAD, ERNAKULAM DISTRICT. 3. SINDHU THOMAS,D/O.M.P.JACOB, MANGALAM HOUSE, CHITTOOR ROAD, ERNAKULAM. 4. AMEENA JACOB,W/O.M.P.JACOB, MANGALAM HOUSE,CHITTOOR ROAD, ERNAKULAM. 5. THE OFFICIAL RECEIVER, SUB COURT, PARAVUR. R1 BY ADVS. MR.KURIAN ANTONY EDASSERY R5 BY MR.PAUL MATHEW (PERUMPILLIL), MR.P.V.SREENIJIN, MR.PRASUN.S, MR.SANU.S.PANICKER, MR.K.T.BOSCO. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 16/03/2010, THE COURT ON 22/0302010 DELIVERED THE FOLLOWING: W.P.(C) NO.27256/2009 APPENDIX PETITIONER'S EXHIBITS P1(a) & (b):- COPY OF THE JUDGMENT OF THIS HONOURABLE COURT IN CAM. 129/95 AND CMA. 196/96 DTD. 22.3.06 AND 21.8.1996. P2(a) &(b):- COPY OF THE JUDGMENT OF THIS HONOURABLE COURT W.P.34496/09 DTD. 27.9.08 AND ATHE AUCTION RULES FRAMED THEREIN. P3:- COPY OF THE ORDER OF THE COURT BELOW IN C.A. NO.1/09 DTD. 7.8.09. P4:- COPY OF THE ORDER OF THE COURT BELOW IN IA. 3129/97 DTD. 8TH JULY. P5:- COPY OF THE JUDGMENT OF THIS HONOURABLE COURT IN CRP. 1698/98 DTD. 3RD MARCH 1999. RESPONDENT'S EXHIBITS R1(a):- COPY OF THE MEMO SUBMITTED BY M.P. CHERIAN DTD. 21.12.04. R1(b):- COPY OF THE COMMISSION REPORT SUBMITTED BY THE ADVOCATE COMMISSIONER DT. 1.4.09. R1(c):- COPY OF THE OPINION SUBMITTED BY THE FIELD OFFICER, RUBBER BOARD, PERUMBAVOOR DTD. 16.2.09. TRUE COPY P.S. TO JUDGE tss P.BHAVADASAN, J. ------------------------------------- WP(C) No.27256 of 2009-O ------------------------------------- Dated 22nd March 2010 Judgment In this Petition filed under Article 227 of the Constitution of India, the petitioner challenges Ext.P3 order passed by the Sub Court, Perumbavoor, whereby the Court below has ordered re-auction to be conducted in respect of Plot Nos.2 and 3. 2. The first respondent filed OS No.2/07, which is a suit for partition. Extensive items of properties were involved, which were mainly rubber plantations. During the pendency of the suit, an arrangement was made, whereby the properties of which partition was sought, were divided into five plots. The sharers were granted permission to take income from the plots each year, under the supervision of the Official Receiver. Except for the period from 2005-08, this arrangement has been going on. WPC 27256/09 2 3. The petitioner pointed out that in the auction conducted for the period 2008-09 on 26.11.2009, the first respondent herein was the successful bidder of Plot Nos.1 to 4, for an amount of Rs.11,10,000/- (Rupees Eleven Lakhs Ten Thousand only). The petitioner was the successful bidder for Plot No.5 to the tune of Rs.2,50,000/-. The bids were ratified by the Court on 04.12.2008. 1/4th of the bid amount had to be deposited immediately and the balance amount in three equal instalments. The instalments fell due on 04.03.2009, 04.06.2009 and 04.09.2009. The grievance of the petitioner is that as regards Plot Nos.2 and 3, which were bid by the first respondent, he defaulted payment of the balance three instalments and also two instalments with regard to Plot Nos.1 and 4. The Court below directed re-auction of Plots 2 and 3. This, according to the petitioner, is illegal because the order, under which the auction was conducted did not contemplate re-auction on default to pay the bid amounts. WPC 27256/09 3 4. The first respondent has filed a detailed counter affidavit. He also accuses the petitioner of having defaulted in payment of the third and fourth instalments in relation to Plot No.5. He admitted that he had participated in the auction held on 26.11.2008 and had bid for Plot Nos.1 to 4. He would say that after taking possession of the properties, it was found that the yield from Plot Nos.1 to 3 was exhausted and the slaughter tapping had already been done. Various other matters are also stated in the affidavit, which are not very relevant for the present purpose. Suffice to say that the first respondent admits his inability to pay the balance instalments due. He justifies the order of re-auction. 5. There is no dispute regarding the fact that the properties, which were to be partitioned was divided into five plots and as an interim arrangement, the income from the plots were to be taken by the sharers by bidding. The auction for the year 2008-09 was conducted on 26.11.2008 and it was confirmed on 04.12.2008. The total bid amount WPC 27256/09 4 was Rs.13,60,000/-. As per the conditions, 1/4th of the bid amount had to be deposited immediately and the balance amount in three equal instalments. 6. The plaintiff in the suit was the highest bidder in relation to Plot Nos.1 to 4 and the first defendant in relation to Plot No.5. The second quarterly instalment of Rs.15,000/- for Plot No.1 and Rs.75,250/- for Plot No.4 were deposited by the plaintiff. The first defendant deposited the second quarterly instalment of Rs.62,500/- for Plot No.5. However, the plaintiff failed to make the second quarterly instalments in relation to Plot Nos.2 and 3. The plaintiff relied on Ext.R1(c) Commissioner's report and justified his inability to pay the instalments due to the bad state of affairs of the plantation. 7. Even assuming what the Commissioner's report says is true, going by the various orders, it is extremely doubtful whether a re-auction could be ordered, as has been done by the Court below. The plaintiff in the suit bid for Item Nos.1 to 4 with open eyes and later, he WPC 27256/09 5 could not be heard to say that since he could not derive any income from the property, he is not liable to pay the subsequent instalments. 8. The Court below in para 11 of the impugned order, has observed that as per the order of the Hon'ble High Court dt.21.8.96 in CRP No.1312/96 and CMA No.196/96 and the order dated 11.11.2008 in IA No.1005/08 of the Sub Court, Perumbavoor, which was modified by the Hon'ble High Court in order dated 27.11.2008 in WP C 34496/08, in case of default, re- auction will have to be conducted. The plaintiff who had bid for Plot Nos.1 to 4 was unable to show any such condition in any of the orders. The learned counsel pointed out that the first plaintiff was unable to derive any income from the property due to the bad state of affairs of the estate and that is the reason for his default. 9. Whether the plaintiff can be exonerated from his liability to pay the balance bid amount, has to be reconsidered by the Court below. Prima facie, there does WPC 27256/09 6 not appear to be any order, which says that re-auction will have to be conducted in case any of the parties default in payment of the instalments. In the result, this Petition is allowed. The order dated 07.08.2009 of the Sub Court, Perumbavoor in CA No.1/09, so far as it concerns re- auction of Plot Nos.2 and 3, is set aside and the matter is remanded to the said Court for fresh consideration regarding the above aspect in accordance with law and in the light of the observations contained herein above. P.BHAVADASAN, JUDGE sta WPC 27256/09 7