IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN MONDAY, THE 17TH JANUARY 2011 / 27TH POUSHA 1932 RP.No. 419 of 2010(P) --------------------- AGAINST THE JUDGEMENT/ORDER IN WPC.5815/2008 .................... REVIEW PETITIONER(S): -------------------------------------- USHAKUMARI, D/O.RAGHAVA PANICKER, GTN FAMILY QUARTERS, CHUNAGAMVELI, ERUMATHALA P.O., ALUVA, FROM RAGHAVA VILASOM, KAZHIVOOR P.O., NEYYATTINKARA TALUK. BY ADV. SRI.G.SUDHEER RESPONDENT(S): PETITIONER & RESPONDENTS IN WPC: -------------------------------------------------------------------------------------- 1. S.MURUKAN, S/O.SUNDARESAN, M.S.NIVAS, PUTHUMANKAVU, ARUMANOOR, POOVAR P.O., THIRUVANANTHAPURAM DISTRICT. 2. THE MANAGER, STATE BANK OF TRAVANCORE, NELLIMOODU BRANCH, NELLIMOODU P.O., THIRUVANANTHAPURAM DISTRICT. 3. R.SREEKUMAR, S/O.RAGHAVAN PANIKER, RAGHAVAVILASAM BUNGLOW, KANJIRAMKULAM VILLAGE, KAZHIVOOR P.O., NEYYATTINKARA TALUK. R1 BY ADV. SRI. R. GOPAN R2 BY ADV. SRI.R.S.KALKURA R3 BY ADVS. SRI.D.NARENDRANATH, SRI.M.HARISHARMA. THIS REVIEW PETITION HAVING BEEN FINALLY HEARD ON 17/01/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss THOTTATHIL B. RADHAKRISHNAN, J. ------------------------------------------------------------------------ R.P. No. 419 of 2010 in WP(C) No.5815 of 2008 -------------------------------------------------------------------------- Dated this the 17th day of January, 2011 ORDER This review petition is filed in relation to proceedings in WP(C) No. 5815/2008. 2. Raghavapaniker had three children; Mohan Kumar, Sreekumar and Ushakumari. Sreekumar commenced a proprietary business by availing loan from the 2nd respondent bank. Recovery proceedings were initiated by the bank for the reason that Raghavapaniker mortgaged certain items of properties as security for the loan availed by Sreekumar, the 3rd respondent. That mortgage was enforced by the bank by filing a civil suit. After decree, Raghavapaniker died. The decree debt had, by that time, grown to be an amount beyond jurisdiction of the civil court, making it available for proceedings under the RDB Act. The bank instituted O.A.No. 176/2003 before the Debt Recovery Tribunal. It is stated that the legal representatives of R.P. No. 419 of 2010 2 Raghavapaniker are respondents in that O.A. A recovery certificate was issued, in relation to two items of properties. While matters stood so, the first respondent in this review petition, Murukan filed WP(C) No. 5815/08 saying that he is a bonafide purchaser for value, of item no. 2 in the property and therefore, item no.1 property may be first proceeded against at the first instance, and even if any further amounts are found due to the bank after the sale of item no.1, he may be permitted to pay off that in order to save item no. 2 from distress action. Certified debtor as shown in the sale notice, that is, Sreekumar, was also a respondent in that writ petition. This Court issued an interim order on 19.02.2008 to the following effect: “If the two items of properties, which form the security interest can be sold in two different lots, the Recovery Officer will first proceed for sale of item No.1 in Ext.P7 sale notice and sale proceedings regarding item No.2 will be taken up only if there are no sufficient bidders in relation to item No.1, to satisfy the recovery certificate. If the recovery certificate is not satisfied by sale of item No.1, the petitioner will be given an opportunity to pay off the R.P. No. 419 of 2010 3 remaining amounts and avert recovery proceedings against item No.2 property of which, he claims to be a purchaser. It is clarified that the aforesaid directions are issued to govern the auction and are not intended to bifurcate the sale proceedings calling for issue of separate notifications”. 3. Later, when the writ petition came up on 03.09.2008, the following was issued as the judgment. “It is submitted by the counsel for the petitioner and the Bank that the recovery order issued by the DRT has been satisfied by sale of item No.1 which has been purchased by the writ petitioner by paying the amount due under the recovery certificate. This means that the Debt Recovery Tribunal or the Recovery officer, as the case may be, has to look into the files to see whether the recovery certificate is satisfied and if so, the amount due to the Bank so recovered shall be transferred to the credit of the Bank and directions will be issued enabling the Bank to release the original title deeds to the petitioner. Let this be done within an outer limit of four weeks from the date of receipt of copy of this judgment.” Counsel appearing for Sreekumar in this review petition does not, in any manner, dispute the aforesaid orders which was issued at the stage of admission of the writ petition. 4. This review petition is filed challenging the afore R.P. No. 419 of 2010 4 said judgment and interim order on the premise that Mohan Kumar, one of the sharers of the properties of Raghavapaniker, is a mentally challenged person, who is under treatment for mental retardation, as certified by the Taluk Hospital, Neyyattinkara and that Murukan and Sreekumar, the principal debtor, under the contract had fraudulently obtained the judgment sought to be reviewed and thereby depriving Mohan Kumar of item no.1 which was put in sale and purchased by Murukan. 5. This review petition has been admitted and parties were heard on the basis of the counter affidavit also. 6. For one thing, the right of the bank to recover the amounts due is not disputed. The mortgage by the mortgagor Raghavapaniker has even fructified into a decree during his lifetime. When that decree was made the basis of further proceedings under the RDB Act, no plea among R.P. No. 419 of 2010 5 the heirs of the mortgagor, Raghavapaniker, could have been considered by the DRT to make a choice regarding the sale of the property. It would have been, however, open to the bank to make a choice and state that one particular item may be proceeded at the first instance. The recovery officer of the DRT could also make such a choice because what ultimately has to be sold is only such extent as may be necessary to satisfy the decree debt. This is a mandate of law. 7. In the case in hand, it is not in dispute that the review petitioner Ushakumari, who now professes to espouse the cause of her mentally challenged brother Mohan Kumar, was a party to the proceedings before the DRT. Mohan Kumar was also a party. To the specific query by this Court, it is well conceded by the review petitioner that she had never raised any objection before the Presiding Officer of the DRT or before any Recovery R.P. No. 419 of 2010 6 Officer about the alleged mentally challenged status of Mohan Kumar. That apart, the contesting respondent Murukan has placed on record, among other things, that there is a partition deed between Ushakumari, Sreekumar and Mohan Kumar, as also their mother in which Mohan Kumar has also joined and signed. The review petitioner points out that it cannot be finally concluded that Mohan Kumar is a mentally fit person. Learned counsel appearing for Murukan pointed out that even under that partition, what is kept for Mohan Kumar is a parcel of item no. 1 and Sreekumar has sold a part out of item no. 2 to a third person, namely, Omana from whom Murukan, in turn, purchased that parcel and purchased the remaining parcel of item no. 2 from Sreekumar. 8. In the aforesaid factual situation, the fact that this Court had essentially approved the choice of the bank as regards items of properties which could be proceeded R.P. No. 419 of 2010 7 against, does not in any manner, affect the plea raised, either before the recovery officer or before the presiding officer of the DRT. For the afore said reasons, here is no error apparent on the face of the record of the judgment or interim order. The review petition hence fails. In the result, this review petition is dismissed with costs fixed at Rs.25,000/- payable by the review petitioner to the State Bank of Travancore, Nellimoodu Branch. THOTTATHIL B. RADHAKRISHNAN, JUDGE. rkc