IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM FRIDAY, THE 29TH OCTOBER 2010 / 7TH KARTHIKA 1932 WP(C).No. 8119 of 2010(L) ------------------------- DRC.NO.2737/SIB IN OA.206/2005 of DEBT RECOVERY TRIBUNAL, ERNAKULAM & O.S.NO.736/2008 OF MUNSIFF'S COURT, KOZHIKODE. .................... PETITIONER(S): ------------------------- ABDUL NASAR P.P., S/O.AHAMMED HAJI, BUSINESS, AGED 42 YEARS, RESIDING AT P.P.HOUSE, MOORIYAD, CHALAPURAM, KOZHIKODE. BY ADVS. SRI.GOPAKUMAR G. (ALUVA), SRI.N.RAYNOLD FERNANDEZ. RESPONDENT(S): --------------------------- 1. SOUTH INDIAN BANK, MAIN BRANCH, JAIL ROAD, KOZHIKODE. 2. PREM RAVI VARMA, S/O.LATE M.S.RAVI VARMA, KAUSTHUBAM, 28/2439, CHEMBAKARA HOUSING COLONY, NELLIKODE P.O., KOZHIKODE, NOW AT 'SREENIKETHAN' P.O.THIRUVANOOR NADA, KOZHIKODE 6730 29. 3. INDIRA RAVI VARMA, W/O.LATE M.S.RAVI VARMA, 'KAUSTHUBAM', 28/2439, CHEMBAKARA HOUSING COLONY, NELLIKODE P.O., KOZHIKODE, NOW AT 'SREENIKETHAN', P.O.THIRUVANOOR NADA, KOZHIKODE 673029. 4. SARASWATHI VARMA, W/O.P.K.VARMA, SREENIKETHAN, P.O.THIRUVANOOR NADA,KOZHIKODE 673 029. *ADDL.R5 IMPLEADED: R5. MURALEEDHARAN, S/O.KUNJIKRISHNAN NAIR, KURUNGOTTU HOUSE, KAYANNA BAZAR POST, PERAMBRA, CALICUT. (*ADDL.R5 IS IMPLEADED VIDE ORDER DTD. 12/08/2010 IN IA NO.11063/2010) R1 BY ADVS. SRI.GEORGE VARGHESE (MANACHIRACKEL), SRI.P.R.MILTON, SRI.K.J.CHACKOCHAN. ADDL.R5 BY ADVS.SMT.NAINA RAJI NAIR, SMT.RINTA GEORGE, SRI.M.J.JOHNSON. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 29/10/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss C. K. ABDUL REHIM, J. =~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~= W.P.(C) No. 8119 of 2010 =~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~= Dated this the 29th day of October, 2010 JUDGMENT Petitioner claims ownership over immovable property covered under Ext.P1 sale deed. According to the petitioner, he purchased the property from respondents 2 and 3 through Ext.P1 sale deed executed by the 4th respondent, as power of attorney holder of respondents 2 and 3. Predecessor in interest of respondents 2 and 3, one Shri.M.S.Ravi Varma had created a mortgage on the property in favour of the 1st respondent Bank. With respect to the said loan transaction, the 1st respondent had obtained a Recovery Certificate from the Debts Recovery Tribunal, for realizing a sum of Rs.22,70,403.73 along with future interest. According to the petitioner, the purchase was made subject to the mortgage and he had approached the 1st respondent Bank, seeking One Time Settlement for payment of arrears due in the loan account. In the meanwhile 1st respondent Bank informed the petitioner that respondents 2 and 3 have revoked the power of attorney issued in favour of the 4th respondent, and they have W.P.(C) No. 8119/2010 2 raised dispute regarding title of the petitioner based on Ext.P1 document. It is stated that the petitioner thereupon filed a civil suit, O.S. No.736 of 2008 before the Munsiff's Court, Kozhikode seeking direction against the 1st respondent Bank for return of the title deeds and documents pertaining to the property. 2. In the meanwhile execution steps were initiated before the Recovery Officer attached to the Debts Recovery Tribunal and the petitioner submitted a claim before that authority as per Ext.P3. Since steps for sale of the property was proceeded, without disposal of Ext.P3, the petitioner had approached the Debts Recovery Tribunal. Through Ext.P4 order the Recovery Officer was directed to dispose of the Claim Petition first, and then to proceed with the proposed auction sale. It is stated that, consequent to Ext.P4, the Recovery Officer posted the Claim Petition for consideration as evidenced from Ext.P5 notice. But at the same time the Recovery Officer proceeded with sale of the property and sale was proclaimed to 12-3- 2010. Under such circumstances, this writ petition was filed W.P.(C) No. 8119/2010 3 seeking direction to postpone the sale till final orders are passed on the Claim Petition (I.A. No.665/2010 in DRC No.2737/SIB in OA 206/2005). 3. When the writ petition came up for consideration, an interim order was issued on 1-3-2010, making it clear that confirmation of the sale if any takes place shall be subject to further orders to be obtained from this court. It is brought to the notice of this court that sale had taken place and the Addl. 5th respondent is the successful bidder, who purchased the property for an amount of Rs.36,86,510/-. It is also brought to notice of this Court that the Recovery Officer dismissed the ClaimPpetition on 11-3-2010, prior to the date of the sale. 4. The Addl. 5th respondent, the auction purchaser, had filed an affidavit, in which it is stated that he was the successful bidder of the property and that he had already deposited the entire amount by virtue of Ext.R5(2) receipt dated 24-3-2010. It is also stated that inspite of such remittance, the Recovery Officer has not so far confirmed the sale and not taken further steps for issuing sale certificate, W.P.(C) No. 8119/2010 4 because of pendency of this writ petition and in view of the interim order issued by this court on 11-3-2010. 5. In the counter affidavit filed by the 1st respondent it is stated that the O.A. in question was field before the Debtor Recovery Tribunal in the year 2005 and all the legal heirs of Sri. M.S.Ravi Varma and the co-obligants were impleaded in the O.A. The Debts Recovery Tribunal passed final order on the O.A. as early as on 14-6-2007. It is stated that the property in question was proclaimed for sale on different dates during the year 20009 and sale could not be materialized due to want of bidders. It is further stated that, after receipt of Ext.P4 order issued by the Tribunal the Recovery Officer considered the Claim Petition of the petitioner and an order was already issued on 12-3-2010, and the sale was conducted in favour of the 5th respondent thereafter. It is contended that the petitioner claims to be an alleged assignee and that he has no right to raise any claim with respect to the property which stood mortgaged in favour of the Bank. It is alleged that the attempt of the petitioner is solely with an intention to protract W.P.(C) No. 8119/2010 5 realization of money due to the Bank and the same is intended to pressurize the Bank to agree for the terms of the settlement. It is also pointed out that the petitioner had approached this Court on an earlier occasion by filing W.P.(C) No.2912 of 2009, but the same was dismissed reserving his rights to seek appropriate remedies before appropriate authority. 6. The order of the Recovery Officer dismissing the Claim Petition has been produced before this Court. The petitioner claims right over the property on the basis of Ext.P1 sale deed. Validity of Ext.P1 sale deed is in dispute, since the previous owners (respondents 2 and 3) have disputed authority of the power holder in executing Ext.P1 sale deed. However, the question regarding validity of Ext.P1 sale deed is only a dispute between the petitioner and respondents 2 and 3. Neither the 1st respondent Bank nor 5th respondent is in any manner concerned or affected by such dispute. It is evident that the petitioner is not a party to the loan transaction in question. Admittedly, the mortgage was created prior to execution of W.P.(C) No. 8119/2010 6 Ext.P1 sale deed. Under such circumstances, I am of the view that merely because the petitioner claims a right over the property, by virtue of Ext.P1 sale deed, interest of the 1st respondent who had already obtained a recovery certificate shall not be put to prejudice. It is now evident that the sale has taken place subsequent to dismissal of the Claim Petition by the Recovery Officer. If the petitioner is aggrieved by dismissal of the Claim Petition and by the sale which took place, it is for him to seek appropriate remedy before the statutory authority prescribed under the relevant statute. The relief sought for in this writ petition could not be entertained and the writ petition is liable to be dismissed. 7. Learned counsel for the petitioner submitted that the petitioner is intending to agitate the matter before appropriate authority and seeks indulgence of this Court to keep in abeyance further steps pursuant to sale for a reasonable period, in order to facilitate him to approach such authority. 8. Having considered the fact that this writ petition was pending for the last more than six months and that an interim W.P.(C) No. 8119/2010 7 order issued by this court was in force during such time, I am of the opinion that all further proceedings of the Recovery Officer shall be kept in abeyance for a reasonable period in order to take appropriate steps by the petitioner, if so advised 9. In the result, the writ petition is dismissed. However, it is directed that the Recovery Officer of the Debts Recovery Tribunal, Ernakulam will keep all further steps pursuant to the sale conducted on 12-3-2010 in abeyance for a period of one month from today. C. K. ABDUL REHIM, JUDGE. mn.