IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN THURSDAY, THE 11TH JUNE 2009 / 21ST JYAISHTA 1931 WP(C).No. 13093 of 2009(O) -------------------------- CMA.10/2009 of SUB COURT, TIRUR OS.312/2008 of M.C.,PARAPPANANGADI .................... PETITIONER(S): ---------------------------- 1. CHEKKAMADATH KUTTY BAVA HAJI, AGED 61 YEARS,S/O.MOHAMMED KUTTY, PARIYAPURAM AMSOM DESOM,OTTUPURAM, TANUR P.O. TIRUR TALUK, MALAPPURAM. 2. CHEKKAMADATH SHAFI,AGED 33, S/O.CHEKKAMADATH KUTTY BAVA HAJI, RESIDING -DO- 3. CHEKKAMADATH SALEEM,AGED 31 YEARS, S/O. CHEKKAMADATH KUTTY BAVA HAJI,RESIDING -DO- BY ADV. MR.T.G.RAJENDRAN RESPONDENT(S): --------------------------- 1. CHEKKAMADATH NAZER, AGED 33 YEARS, S/O. ALI MOHAMMED, PARIYAURAM AMSOM DESOM, OTTUMPURAM, TANUR P.O. TIRUR TALUK, MALAPPURAM. 2. STATE BANK OF TRAVANCORE, REP.BY ITS BRANCH MANAGER,TANUR BRANCH,MALAPPURAM. 3. THE AUTHORISED OFFICER/CHIEF MANAGER, STATE BANK OF TRAVANCORE, REGION III, ZONAL OFFICE, KOZHIKODE. R1 BY ADV. MR.NIRMAL. S. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 11/06/2009,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss S.S.SATHEESACHANDRAN, J. ------------------------------- W.P.(C).NO.13093 OF 2009 (O) ----------------------------------- Dated this the 11th day of June, 2009 J U D G M E N T The writ petition is filed under Article 227 of the Constitution of India seeking the following reliefs: i. to issue a writ or certiorari or any other appropriate writ order or direction, calling for the records leading to Ext.P2, P3, P4 and P5 and quash Ext.P3 and P5 orders of the Munsiff Court, Parappanangadi and the Subordinate Judge, Tirur. ii. to issue a writ or mandamus or any appropriate writ order or direction, commanding the Munsiff Parappanangadi to consider the jurisdiction of the civil court to receive the suit in the nature of Ext.P2 and pass appropriate orders. iii. to grant such other reliefs prayed for from time to time including cost of these proceedings. 2. Petitioner had availed a loan of Rs.5 lakhs from the WPC.13093/09 2 2nd respondent Bank by mortgaging his properties having an extent of 55 cents comprised in RS No.19/7 and 19/8 in Block No.1 of Pariyapuram village. On default of payment of the loan, Bank proceeded against the petitioner under the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002, for short 'the SARFASI Act', and pursuant thereto the mortgaged property was put in auction for realisation of the debt due to the bank. The 1st respondent was the successful bidder in the auction and he knocked down the properties for a total sum of Rs.6,80,000/-. After getting delivery of the property covered by the sale deed alleging interference over the possession and enjoyment by the petitioners herein, he filed a suit as O.S.No.312/2008 seeking a decree of perpetual prohibitory injunction against them. In the suit, he filed an application for interim injunction for an identical relief as claimed in the suit till its disposal and that was allowed after hearing both sides, by the learned Munsiff. Ext.P3 is the copy of that order. Questioning the correctness of that order, the petitioners preferred an appeal as C.M.Appl.10/2009 before the Sub WPC.13093/09 3 Court, Tirur. In the C.M.Appln, the 1st respondent entered appearance and filed a counter resisting the application moved by the petitioners to keep in abeyance of the orders passed by the court below. It is stated, the petitioners gave an undertaking before that court to vacate from the property by 30.4.2009 and an affidavit expressing such undertaking was also filed before the court. Ext.P5 is the order passed by the learned Sub Judge on the basis of that undertaking making it clear that the petitioners shall leave the property unconditionally after the period given in their undertaking. 3. The writ petition is filed subsequent to the above developments. The house in which the petitioners are residing was not a subject matter of the mortgage or sale, and that petitioners have preferred an appeal before the Debt Recovery Tribunal are the grounds canvassed for the aforementioned reliefs in the writ petition invoking the supervisory jurisdiction of this Court vested under Article 227 of the Constitution of India. WPC.13093/09 4 4. I heard the learned counsel on both sides. Inviting my attention to Ext.P1 sale notification, the learned counsel for the petitioners submitted that the house was not a subject matter of the proceedings under the SARFASI Act but only the land covered by the mortgage, and so much so, the petitioners have a right to continue occupation in that building. The undertaking given to the Sub Court, Tirur by the petitioners is also sought to be explained by stating that the marriage of the 1st petitioner's son was fixed then and in such compelling circumstances, they had no other way but to give such an undertaking before the court, and that should never be taken as destructive of their legal rights atleast over the building in their occupation. The petitioners have preferred an appeal before the Debt Recovery Tribunal impeaching the proceedings taken by the bank leading to the sale of the mortgage is also canvassed by the learned counsel to contend that their occupation over the building should be permitted to be continued till the matter is adjudicated and a final decision given by the tribunal. Countering the arguments of the WPC.13093/09 5 learned counsel for the petitioners, the learned counsel for the 1st respondent auction purchaser submitted that the property was delivered with the building pursuant to sale and later at the time of mortgage, on the undertaking given by the petitioners to enable them to conduct the marriage of the 1st petitioner's son, occupation of the building was provided on their specific undertaking to vacate from that property after that date. Undertaking given to the court has been violated by the petitioners in not vacating from the property and on that ground itself, petitioners are not entitled to any relief, is the submission of the learned counsel. The learned counsel appearing for the 2nd and 3rd respondents also supported the contentions advanced by the 1st respondent auction purchaser. 5. Having regard to the submissions made by the counsel on both sides and considering the facts and circumstances presented, I find that the petitioners have to avail their remedies, if any, by recourse to the appropriate forum for which, it is seen they have already preferred an WPC.13093/09 6 appeal before the Debt Recovery Tribunal impeaching the correctness of the sale and also delivery of the property to the 1st respondent. Violation of the undertaking given to the court is prima facie borne out in the case. Whatever be the circumstances under which such undertaking was given, petitioners cannot approach this Court and seek indulgence so as to continue their occupation over the house and the property, and to permit them to do so by orders of this Court will be against the spirit of justice. I do not want to express any opinion on the merits of the case, whether or not inclusion of the house in the properties sold is fatal, and how far and to what extent, if any, it vitiated the proceedings of sale. Suffice to say, the petitioners by their conduct have shown that they are not entitled to get any reliefs. Petition is dismissed. S.S.SATHEESACHANDRAN JUDGE prp WPC.13093/09 7 S.S.SATHEESACHANDRAN, J. -------------------------------------------------------- CRL.R.P.NO. OF 2006 () --------------------------------------------------------- O R D E R --------------------------------------------------------- 23rd March, 2009