IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM FRIDAY, THE 6TH NOVEMBER 2009 / 15TH KARTHIKA 1931 WP(C).No. 30557 of 2009(L) -------------------------- PETITIONER(S): --------------- SHERLY KAMALASANAN, W/O.K.N.KAMALASANAN, AGED 47 YEARS, KAVUKANDATHIL HOUSE, VETTIPURAM, PATHANAMTHITTA P.O. BY ADV. SRI. K.SHAJ SRI.L.RAJ MOHAN RESPONDENT(S): --------------- 1. REVENUE RECOVERY DEPUTY TAHSILDAR, OFFICE OF THE REVENUE RECOVERY DEPUTY TAHSILDAR, KERALA FINANCIAL CORPORATION, PATHANAMTHITTA. 2. THE KERALA FINANCIAL CORPORATION, PATHANAMTHITTA BRANCH REPRESENTED BY ITS MANAGER, PAZHAMANNIL JESSY TOWERS, COLLEGE ROAD, PATHANAMTHITTA. 3. P.B.RAJEEV, KAVUKANDATHIL HOUSE, VETTIPURAM, PATHANAMTHITTA P.O. ADV. SRI.A.A.ABUL HASSAN, SC, KFC FOR R2 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 06/11/2009, ALONG WITH WP(C) 30835/09, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: C.K. ABDUL REHIM, J. - - - - - - - - - - - - - - - - - - - - - - - W.P.(C)No. 30557 of 2009 & W.P.(C) No.30835 of 2009 - - - - - - - - - - - - - - - - - - - - - - - Dated this the 6th day of November, 2009 J U D G M E N T 1. Challenge in both these writ petitions are against Ext.P3 sale notices in both the cases, published by the 1st respondent proclaiming sale of immovable properties belonging to the petitioners, pursuant to revenue recovery steps initiated for realisation of amounts due in a loan account availed by the 3rd respondent from the 2nd respondent. 2. Petitioner in W.P.(C) No.30557/2009 contends that out of the property proclaimed for sale, property covered under survey No.93/IA25 and 53/IC2 are the properties belonging to her husband, Sri. K.N. Kamalasanan. Contention is that the petitioner's husband has no connection at all with the loan transaction of the 3rd respondent and the properties in question was W.P.(C)No. 30557 of 2009 & W.P.(C) No.30835 of 2009 -2- never mortgaged or charged by petitioner's husband for securing the loan amount, which is availed by the 3rd respondent. It is contended that eventhough the petitioner had submitted Ext.P4 objection before the 1st respondent, steps are being persued for sale, without taking note of the objections. Petitioner in W.P. (C) No.30835/2009 is the father-in-law of the 3rd respondent. A similar claim as that of the other case is raised with respect to property covered by survey No.90/15. According to the petitioner the said property was purchased by him from the 3rd respondent in 2006 and the petitioner was neither a guarantor with respect to the loan transaction nor the property in question and was mortgaged for securing the loan. In that case also the petitioner had filed Ext.P4 objection and complaint is that the sale is being persued without considering Ext.P4. 3. The 2nd respondent had filed detailed statements in both the cases, and a lot of documents are also produced in both the cases in order to substantiate that contentions W.P.(C)No. 30557 of 2009 & W.P.(C) No.30835 of 2009 -3- raised by the petitioners are absolutely untrue and false. According to the 2nd respondent the husband of the petitioner in W.P.(C) No.30557/09 is a guarantor with respect to the loan transaction and immovable properties belonging to him was mortgaged in order to secure the loan amount. The 2nd respondent had produced documents like thandaper register, equitable mortgage register, and other records to show service of notice under the revenue recovery proceedings on the husband of the petitioner as early as in 2003, which will show that the husband of the petitioner had knowingly mortgaged the properties and that he was aware about the recovery steps being persued from the year 2003 onwards. 4. With respect to W.P.(C) No.30835/2009 it is contended by the 2nd respondent that the property upon which the petitioner had now raised the claim, was originally belonged to the 3rd respondent and purchase by the petitioner was effected only after the amount has W.P.(C)No. 30557 of 2009 & W.P.(C) No.30835 of 2009 -4- become due. Therefore the said property is liable to be proceeded against inpsite of the alleged transfer. It is also contended that the petitioner in that case was also served with written demand as early as in the year 2003 and that he was aware about the proceedings pending against with the said property. In view of the above factual situation, learned counsel appearing for the 2nd respondent vehementally contended that, the petitioner in both the cases have approached this court by suppressing of materials and facts without clean hands. There is a deliberate attempt to misrepresent facts and to mislead the court, is the submission. It is further submitted that there occurred some malpractice with respect to the loan transaction in question, at the branch office of the 2nd respondent, and many important files relating to the said loan transaction including the original of the title deeds of the property mortgaged are missing from that office. It is submitted that a vigilance enquiry in the matter is pending W.P.(C)No. 30557 of 2009 & W.P.(C) No.30835 of 2009 -5- and actions against those who are responsible is being proposed. 5. From the rival contention as stated above, it is evident that the claim now raised by the petitioners in these writ petitions need examination based on documentary and other evidences. This court is not the forum which can look into such evidences and enter upon adjudication on such disputed facts. It is evident that the claim now raised is with respect to release of properties which are attached and proceeded against with sale, under the provisions of the Kerala Revenue Recovery Act, 1968. As per Section 46 of the said Act any person interested in any property attached, other than the defaulter, is entitled to raise claim with respect to the whole or any portion of such property on the ground that such property is not liable for the arrears of public revenue for which the attachment is made. If such claim is raised the Collector or authorised officer should make an enquiry into such objections and to decide whether W.P.(C)No. 30557 of 2009 & W.P.(C) No.30835 of 2009 -6- such property is liable to be attached and further such officer shall communicate the decision to the objector in writing. In view of the statutory provision mentioned above the petitioners have got an effective remedy, if they can substantiate that the property belonging to them are not liable to be proceeded against. This is being the position, the contentions raised in these writ petitions cannot be adjudicated and the petitioners have to invoke the remedy available under Section 46. Needless to say that if any proper claim petitions under Section 46 is filed before the appropriate authority, the same shall be considered and dispose of by such authority within a reasonable time, without proceeding with further steps. 6. Eventhough learned counsel for the petitioners had requested for interference of this court to direct keeping in abeyance of the further actions till the petitioners invokes remedies available to them, I am not impresed to grant any such relief considering the factual W.P.(C)No. 30557 of 2009 & W.P.(C) No.30835 of 2009 -7- contentions raised by the 2nd respondent, and the documents produced in support of such contentions. 7. The writ petitions are accordingly dismissed, without prejudice to the rights of the petitioners to invoke remedy under Section 46 of the Kerala Revenue Recovery Act, if available under law. C.K. ABDUL REHIM JUDGE shg/