IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HON'BLE THE CHIEF JUSTICE MR.S.R.BANNURMATH & THE HONOURABLE MR. JUSTICE A.K.BASHEER MONDAY, THE 18TH JANUARY 2010 / 28TH POUSHA 1931 WA.No. 961 of 2009 -------------------- AGAINST THE JUDGEMENT IN WPC.9827/2009 Dated 27/03/2009 .................... APPELLANT/PETITIONER: --------------------------- N.RAJAMANI AMMA, AGED 75, RAJ CASHEW COMPANY, C/O.K.J.P.GROUP COMPANIES, VASANTHA VIHAR, KOCHUPILAMOOD, KOLLAM. BY ADV. SRI.T.M.CHANDRAN SRI.JOSEPH ALBIN NEDUNTHALLY SRI.S.SUJITH SRI.V.A.SASIDHARAN RESPONDENTS/RESPONDENTS: ---------------------------------- 1. THE RECOVERY OFFICER, OFFICE OF THE RECOVERY OFFICER, DEBTS RECOVERY TRIBUNAL (KERALA & LAKSHADWEEP) 8TH FLOOR, K.S.H.B. BUILDING, PANAMPILLY NAGAR, KOCHI-36. 2. INDIAN OVERSEAS BANK, MUSALIAR BUILDING, CHINNAKKADA, KOLLAM, REPRESENTED BY SENIOR MANAGER. 3. SRI.O.KOCHUMMAN, M/S.BEENA CASHEW COMPANY, KADAMPANADU SOUTH POST, ADOOR, PATHANAMTHITTA. 4. SRI.Y.NIZAMUDEEN ON BEHALF OF M/S.TASTY NUT INDUSTRIES REPRESENTED BY M.P.MOHAMMED NOWFAL, K.P.ROAD, KILIKOLLOOR P.O., KOLLAM. WA.No. 961 of 2009 5. SRI.N.M.BASHEER, S/O.NOOR MOHAMMED, BAZHEER NIVAS, KATTUPUTHUSSERY, PALLAICKAL P.O., THIRUVANANTHAPURAM. 6. SRI.P.Y.SALEEM, S/O.P.K.YOUSEF, HOUSE NO.13/IA, PUZHAKARILLATH VEEDU, KOCHI-682 002. ADDL. 7. PENTECOSTAL MISSION, REPRESENTED BY ITS CENTRE PASTER Y.THOMAS, S/O.YOHANNAN, VYTTILA. (ADDL. R7- IMPLEADED AS PER ORDER DATED 23.06.09 IN IA NO.579/09) “ 8. MOIDEEN KUTTY.M.A, S/O.LATE MR.ALI AHMED, MULLAMADAKKAL HOUSE, KARIKKAD AMSOM, TRICHUR DISTRICT. “ 9. SALMA BASHEER, W/O.ABDUL BASHEER, MULLAMADAKKAL HOUSE, KARIKKAD AMSOM, TRICHUR DISTRICT. (ADDL. R8 & R9 - IMPLEADED AS PER ORDER DATED 20.08.09 IN IA NO.807/09) “ 10. MUHAMMED BASHEER.A, AGED 40 YEARS, S/O.MOHAMMED UNNI, AMMANNOOR HOUSE, VADAKKEKAD POST, THRISSUR-679562. “ 11. T.C.NIZAR, AGED 32 YEARS, S/O.T.C.ABDUL RAZACK HAJI, THEKKENCHERRY HOUSE, PALUVAI POST, CHAVAKKAD, THRISSUR-680522. (ADDL. R10 & R11 - IMPLEADED AS PER ORDER DATED 24.09.09 IN IA NO.940/09) “ 12. AMEER.P.M, S/O.ARAKKAL ABDULLA, "BRIGHT MANSION", P.O.ORUMANAYUR, CHAVAKKAD, THRISSUR DISTRICT. (ADDL. R12- IMPLEADED AS PER ORDER DATED 25.09.09 IN IA NO.936/09) “ 13. IBRAHIM, S/O.MOIDEEN, POOLAKODAN HOUSE, KARIKKAD VILLAGE, PERUMPILAVU AMSOM DESOM, THALAPPILLY TALUK, THRISSUR DISTRICT. (ADDL.R13-IMPLEADED AS PER ORDER DATED.25/09/09 IN IA.893/2009.) “ 14. C.P.MOHAMMED NAJEEB, S/O.MOHAMMED, CHERULIPARAMBIL HOUSE, KARINGAD, VILAYUR P.O, (VIA) PATTAMBI, PALAKKAD. WA.No. 961 of 2009 ADDL. 15. K.P.ABDUL NAZAR, S/O.MOIDEEN KUTTY, KOLOTH PARAMBIL HOUSE, AMAYUR POST, PATTAMBI, PALAKKAD. “ 16. SALIM.E.K, S/O.MOHAMMED KUTTY, ETTEKODAN HOUSE, KONDOORAKARA POST, PATTAMBI, PALAKKAD. “ 17. V.K.IMBICHI MOHAMMED, S/O.ABOOBACKER KOYA, VYATTKAVIL HOUSE, KONDOORAKARA POST, PATTAMBI, PALAKKAD. “ 18. E.K.MOHAMMED KUTTY, S/O.KUNJALAVI, ETTEKODEN HOUSE, KONDOORAKARA POST, PATTAMBI, PALAKKAD. (ADDL. R14 & R18 - IMPLEADED AS PER ORDER DATED 25.09.09 IN IA NO.894/09) “ 19. SHOBA THAMPI @ SHOBA VASANTH, AGED 50 YEARS, W/O.NARAYAN THAMPI, HOUSE NO.G 353, PANAMPILLY NAGAR, ERNAKULAM, KOCHI-36. (ADDL.R19 IMPLEADED AS PER ORDER DATED.25/09/2009 IN IA.952/2009) ADDL. 20. RIYAS, AGED 29 YEARS, S/O.UMMER, 'RAFSEENAS', ANJARAKANDY, KANNUR DISTRICT. ADDL. 21. PEEDIACKALATHU ABDULLA, AGED 48 YEARS, S/O.ALUPPI HAJI, BAITHUL BAHRAIN, VADAKARA, KOZHIKODE. (ADDL. R20 & R21 - IMPLEADED AS PER JUDGMENT DATED 18.01.10) ADDL. 22. SATHISH MOHAN, AGED 47 YEARS, S/O. SUKUMARA PILLAI, AYODHYA, KIZHAKKEKARA, KOTTARAKKARA. ADDL. 23. JAYACHANDRAN R., AGED 33 YEARS, S/O. RAVEENDRAN PILLAI, JAYA MANDIRAM, THETTIKKUZHI, KALLUVATHUKKAL P.O., KOLLAM. ADDL. 24. P.R. SACHIDANANDAN PILLAI, AGED 60 YEARS, S/O. RAMAKRISHNA PILLAI, THUNDIL PUTHEN VEEDU, CHEMMANTHOOR P.O., PUNALUR, KOLLAM DISTRICT. (ADDL. R22 TO R24 - IMPLEADED AS PER JUDGMENT DATED 18.01.10) ADV. SRI.K.A.JALEEL FOR ADDL.R6 SRI.C.S.MANU FOR ADDL.R3 WA.No. 961 of 2009 SRI.S.K.PREMRAJ FOR ADDL.R3 SRI.ANOOP V.NAIR FOR ADDL.R3 SRI.ABHILASH AKBAR FOR ADDL.R3 SRI.T.B.SIVAPRASAD FOR ADDL.R3 SRI.K.N.RAVEENDRAN FOR ADDL.R3 SRI.P.CHANDRASEKHARAN PILLAI (VENNELA) FOR ADDL.R3 SRI.P.B.SURESH KUMAR, SC,I.O.BANK FOR R2 SRI.K.JAYAKUMAR FOR ADDL R4 SRI.P.B.KRISHNAN FOR ADDL R4 SRI.C.S.MANU FOR R6 SRI.S.K.PREMRAJ FOR R6 SRI.ABHILASH AKBAR FOR R6 SRI.T.B.SIVAPRASAD FOR R6 SRI.K.N.RAVEENDRAN FOR R6 SRI.P.CHANDRASEKHARAN PILLAI (VENNELA) FOR R6 SRI.M.MOHAMED NAVAZ FOR R7 SRI.RAJIT FOR ADDL.R8 & 9 SRI.RAJIT FOR ADDL.R5 SRI.RAJIT FOR ADDL.10 TO R14 SRI.JIJO PAUL FOR ADDL R16 SRI.S.SHANAVAS KHAN FOR ADDL.R SRI.BEPIN VIJAYAN FOR ADDL.R17 SRI.M.RAMESH CHANDER FOR ADDL.R20 SMT.K.A.SANJEETHA FOR ADDL.R20 SRI.S.SHANAVAS KHAN FOR R21 & 22 SRI.K.SASIKUMAR FOR ADDL.R22 TO R24 SRI.K.GOPALAKRISHNA KURUP FOR ADDL.R20 THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 18/01/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: S.R. Bannurmath, C.J. & A.K. Basheer, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - W.A.No. 961 OF 2009 and I.A Nos. 1312 and 1140 OF 2009 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 18th day of January, 2010 JUDGMENT Basheer, J. The appellant is stated to be the sole proprietrix of M/s.Raj Cashews which is one of the constituents of K.J.P Group of Companies. 2. Admittedly, K.J.P Group of companies had availed of various loans from Indian Overseas Bank, respondent No.2 herein, in the early 1970s on the strength of mortgage of 28 items of immovable properties situated not only in Kerala but also in Tamil Nadu and Andhra Pradesh. 3. The Bank proceeded against the Company during 1987 when default was committed in repayment of the loans. It is beyond controversy that compromise decrees had been passed in the Suits instituted by the Bank and in terms of the compromise decrees, time was granted to the defendants for payment of the amounts due. It is on record that later the W.A.No. 961 OF 2009 and I.A Nos. 1312 and 1140 OF 2009 -:2:- Bank proceeded against some of the secured assets situated in Kerala, Tamil Nadu and Andhra Pradesh. 4. It is brought to our notice that parties had come to some sort of understanding and the Bank agreed to release the charge over all the properties in Kerala, if the judgment debtors remit a sum of Rs.7.25 Crores in respect of properties situated in Kerala. Thus, going by the terms of settlement, the debtors were liable to pay Rs.7.5 Crores on or before March 25, 2009. But, since the debtors could not pay the amount as per the settlement, the Bank proceeded against the properties mentioned in Ext.P1 sale proclamation. Item Nos. 2 to 5 therein were in fact sold and certain amounts recovered. 5. In the meanwhile, the appellant had approached this Court by filing WP(C) No.9827 of 2009 praying for a writ of certiorari to quash Ext.P1 sale proclamation contending, inter alia, that she was not given sufficient opportunity to pay off the liability. She prayed that she may be granted three months time to make payment of Rs.3 Crores in compliance with Ext.P3 letter. The learned Single Judge after noticing that the W.A.No. 961 OF 2009 and I.A Nos. 1312 and 1140 OF 2009 -:3:- outstanding liability is around Rs.27 Crores and recovery proceedings have been going on for more than a quarter of a Century, declined to grant any relief to the petitioner/appellant. Accordingly, the Writ Petition was dismissed. Hence this appeal. 6. When this appeal came up for admission on April 24, 2009 this Court had stayed confirmation of sale pursuant to Ext.P1 proclamation. Thereafter when the appeal came up for further consideration from time to time some other interim orders were issued. By order dated June 1, 2009 sale of item Nos.2, 3 & 4 was confirmed and the sale price was ordered to be credited to the account of the Bank. Later by order dated June 23, 2009 item No.5, having an extent of 189.18 cents, was permitted to be sold in favour of additional respondent No.7, the Pentecostal Mission, Vyttila. The appellant was directed to identify any willing purchaser for item No.6 and other scheduled properties at Aluva and elsewhere. Still later by order dated September 25, 2009 item No.6 was permitted to be sold to additional respondents 10 and 11 for a sum of Rs.1 Crore 80 lakhs. As regards the property at Agathiyoor in W.A.No. 961 OF 2009 and I.A Nos. 1312 and 1140 OF 2009 -:4:- Thalappilly Taluk, the learned Standing Counsel for the Bank informed the Court that the Bank had already released title deeds of the said property in favour of the owner who paid a sum of Rs.1 Crore 37 lakhs towards its value. 7. Since it was noticed by this Court that earnest efforts were being made by the parties to wipe off the outstanding liability, some indulgence was shown to them by us with a view to help the appellant and her family members to come out of the ruck. Accordingly, we had enlarged the time for payment under the One Time Settlement Scheme from time to time. We may place on record the excellent co-operation and compassion shown by the Bank in this regard. Now what remains is only to find a way out to give a quietus to the issue as far as the properties situated in Kerala are concerned. 8. Today when the case came up for further consideration, learned Standing Counsel for the Bank submitted that as on today approximately a sum of Rs.24 lakhs out of Rs.7.25 Crores remains as the outstanding balance. It is brought to our notice that petitioners in IA No.1312 and 1140 of W.A.No. 961 OF 2009 and I.A Nos. 1312 and 1140 OF 2009 -:5:- 2009 who have sought themselves to be impleaded in this appeal, are interested in purchasing item No.16 in Annexure A1 sale proclamation along with all structures therein. This item of property having an extent of 85 cents is situated in Survey No.204(R.Sy. No.47/1) in Thaliparamba of Kannur District. In Annexure 1 notice the reserve price of this property is shown as Rs.15 lakhs. Since the petitioners in the interlocutory applications referred to above were very keen to purchase the above property, it was suggested that a bid can be held straightaway. As agreed by the parties and the learned counsel appearing for the appellant and other respondents a bid was held and ultimately petitioners in IA No.1140 of 2009 turned out to be the successful bidders who offered Rs.40 lakhs as against the offer of Rs.38 lakhs made by the petitioners in IA No.1312 of 2009. Having regard to the best interest of the appellant and other respondents, we are of the view that the offer made by the petitioners in IA No.1140 of 2009 can be accepted. Ordered accordingly. W.A.No. 961 OF 2009 and I.A Nos. 1312 and 1140 OF 2009 -:6:- 9. In the above facts and circumstances, the Writ Appeal is disposed of with the following directions: a) The amount recovered by the Bank from the sale of the properties held hither to shall be credited to the loan account. b) The statement of the learned Standing Counsel for the bank that as on today a sum of Rs.24 lakhs remains to be paid by the judgment debtors is recorded. The fact that neither the appellant nor any of the contesting respondents has disputed the correctness of the said claim is also recorded. c) Petitioners in IA No.1140 of 2009 shall remit an amount of Rs.40 lakhs before the Indian Overseas Bank, Kollam Branch on or before January 20, 2010. On such remittance having made by them, a sum of Rs.24 lakhs shall be adjusted by the Bank towards the entire outstanding dues from the appellant and the judgment debtors concerned. The charge over the remaining items of properties in Kerala shall be released/discharged by the Bank after such payment/adjustment and those properties shall be released to the respective parties. W.A.No. 961 OF 2009 and I.A Nos. 1312 and 1140 OF 2009 -:7:- d) The balance amount of Rs.16 lakhs shall be retained by the Bank subject to further orders to be issued by the Debt Recovery Tribunal, Ernakulam. e) The Recovery Officer shall issue sale certificate in respect of item No.16 in favour of petitioner No.2 in IA No.1140 of 2009 as agreed by the two petitioners in that interlocutory application. f) It is made clear that the interim orders passed by this Court during the pendency of this Writ Appeal shall form part of this judgment. The Writ Appeal is disposed of in the above terms. All pending interlocutory applications stand dismissed. S.R. Bannurmath, Chief Justice. A.K. Basheer, Judge. ttb W.A.No. 961 OF 2009 and I.A Nos. 1312 and 1140 OF 2009 -:8:- 5. Now according to the Bank, approximately a sum of Rs.20.70 Lakhs remains to be paid. In this context we may refer to certain interim orders/directions issued by us when the Writ Appeal had come up for consideration. During the pendency of the Writ Appeal it was brought to our notice that earnest efforts were being made by the parties to tide over the crisis. Accordingly, some indulgence were shown by us with a view to save the appellant and her family members to come out of the racket. We may place on record the excellent co-operation shown by the Bank also in this regard. We do not propose to refer to or deal with various interim orders passed by us in the course of the pendency of the Writ Appeal. Suffice it to say that, quietus can be given as far as the properties that are situated in Kerala is concerned, as mentioned earlier, what remains is only Rs.20.70 lakhs. 6. During the pendency of the writ appeal, keeping in W.A.No. 961 OF 2009 and I.A Nos. 1312 and 1140 OF 2009 -:9:- view the plight of the parties, we had enlarged the time for One Time Settlement up to 10.01.2010. During the pendency of the Writ Appeal, third parties who are interested to purchase the properties had also come up before us expressing their willingness to purchase the properties covered under Ext.R20 Notification. Today when the case came up for consideration, two of such outsiders have expressed their willingness to purchase item No.16 covered under Annexure 1 proclamation of sale issued by the Recovery Officer and filed IA Nos.1312 and 1140 of 2009. Petitioners in these Interlocutory Applications are impleaded as additional respondents in this Writ Appeal. The above property having an extent of 85 cents has been described in Annexure A1 as item No.16 along with all structures in Sy.No.204(Re.Sy. No.47/1) of Village, Taluk and Sub District Thaliparamba, District Kannur. As agreed by the parties, when the property was put to sale, petitioners in IA No.1140 of 2009 have offered a sum of Rs.40 lakhs as against Rs.38 lakhs offered by the petitioners in IA No.1312 of 2009. Having regard to the best interest of the appellant and other W.A.No. 961 OF 2009 and I.A Nos. 1312 and 1140 OF 2009 -:10:- defendants, we are of the view that the offer made by the petitioners in IA No.1140 of 2009 can be accepted. Ordered accordingly. 7. In the above facts and circumstances, the Writ Appeal is disposed of with the following directions: The petitioners in IA No.1140 of 2009 are directed to remit a sum of Rs.40 lakhs before the Indian Overseas Bank, Kollam branch on or before 20.01.10 before the closure of the working hours. On such remittance, a sum of Rs.24 lakhs shall be adjusted by the Bank towards the entire outstanding dues from the appellant and defendants for release of the Kerala properties alone. The balance amount shall be kept by the Bank subject to further orders by the DRT. The Recovery Officer shall issue sale certificate in respect of item No.16 in favour of the 2nd petitioner in IA No.1140 of 2009. The remaining properties in Kerala shall be released to the respective parties. The Writ Appeal is disposed of in the above terms. W.A.No. 961 OF 2009 and I.A Nos. 1312 and 1140 OF 2009 -:11:-