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 THURSDAY, THE 19TH NOVEMBER 2009 / 28TH KARTHIKA 1931 WA.No. 778 of 2009 ------------------------------- AGAINST THE JUDGEMENT IN WPC.34301/2005 Dated 05/09/2008 .................... APPELLANT/3RD RESPONDENT --------------------------------------------- THE SOUTH INDIAN BANK LTD., THRISSUR - 680 001, REPRESENTED BY THE DEPUTY GENERAL MANAGER (LEGAL AND RECOVERY) THRISSUR. BY ADV. SRI.K.K.JOHN RESPONDENTS/PETITIONER AND RESPONDENTS 1 AND 2 ----------------------------------------------------------------------------------- 1. SMT. BINU, W/O. VINOD KUMAR, PANDARATHIL HOUSE, P.O. THALASSERY, THALAPPILLY TALUK, REPRESENTED BY POWER OF ATTORNEY HOLDER REGHUNATHAN @ PRABHAKARAN, S/O.ACHUTHAN, NEENDOOR HOUSE, P.O. THALASSERY, DESAMANGALAM,THALAPPILLY,THRISSUR 2. DEBTS RECOVERY TRIBUNAL, KERALA AND LAKSHADEEP, 5TH FLOOR, KSHB BUILDING, PANAMPILLY NAGAR, ERNAKULAM. 3. THE REVENUE DIVISIONAL OFFICER, THRISSUR. R1 BY ADV.SRI.M.RAJIT R2 BY ADV. SRI.JOMY GEORGE R3 BY SR.GOVERNMENT PLEADER SMT.K.MEERA THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 19/11/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: S.R.Bannurmath, C.J. & A.K. Basheer, J. ------------------------------------------ W.A. No.778 of 2009 ------------------------------------------ Dated this the 19th day of November, 2009 JUDGMENT A.K.Basheer, J. This writ appeal illustrates a classic example of sheer abuse of judicial process, and that too at the hands of a financial institution, a scheduled Bank. 2. Respondent No.1 was the successful bidder in a revenue sale held way back in the year 1999. The proceedings were initiated at the instance of Excise authorities for recovery of Abkari kist due from one Subramonian. It is the admitted position that the sale held by the revenue authority was confirmed and sale certificate was issued in favour of respondent No.1. 3. It appears that in 2004 the appellant approached the Debts Recovery Tribunal, Ernakulam, for issue of a recovery certificate under Section 31A of the Recovery of Debts due to Banks and Financial Institutions Act, 1993, contending that the subject matter of the revenue sale had been mortgaged by Subramonian in its favour and that a decree had also been obtained against the said mortgagor. W.A.No.778 of 2009. - 2 - However, it is the admitted position that during the pendency of the proceeding before the Debts Recovery Tribunal, the appellant had sought deletion of the name of respondent No.1 from the array of parties as no relief was sought against her. 4. But, according to respondent No.1, even after this, the appellant started to propagate and proclaim in the locality that the property purchased by her in revenue sale did not belong to her and the appellant had still got valid subsisting right in the said property. It was at that stage that respondent No.1 had filed the writ petition under Article 226 of the Constitution primarily with a prayer to issue a declaration that she is the absolute owner of the property in question having an extent of one acre and four cents situated in R.Sy.No.190/3P and 190/5P of Vadakkummuri Village in Thrissur District. 5. The learned Single Judge after considering the entire aspects of the matter found that respondent No.1 was entitled to get the relief as prayed for and allowed the writ petition. 6. The above judgment is impugned in this writ appeal W.A.No.778 of 2009. - 3 - which has been filed with a delay of 170 days. We have condoned the delay, of course, after issuing notice to respondent No.1. 7. We have heard learned counsel for the parties at length and perused the materials available on record. 8. As indicated by us earlier, the revenue sale was held in the year 1999. Sale was confirmed in favour of respondent No.1 shortly thereafter. However, in 2004, the appellant had approached the Debts Recovery Tribunal impleading respondent No.1 as well in the party array apparently in its bid to execute a decree obtained by it against Subramonian. But, in the course of that proceeding, the name of respondent No.1 was deleted from the party array at the instance of the appellant itself since she was not a party to the decree. It is thereafter that the appellant had allegedly started propagating the news that the appellant has still got subsisting right in the property. Though a lawyer notice was issued asking the appellant to refrain from making such false claims, a reply notice (Ext.P5) was sent claiming right over the property and threatening that the property would be put to sale. Writ petition was filed by respondent No.1 at W.A.No.778 of 2009. - 4 - that stage. 9. In this context it may at once be noticed that the appellant had not filed any counter affidavit in the writ petition before the learned Single Judge controverting any of the averments or allegations made by respondent No.1. It is to be further noticed that admittedly the appellant had no case that it had a preferential right over the crown debt. The revenue sale was held for recovery of Abkari kist which fell due from the contractor Subramonian way back in the year 1991-92. Appellant obtained the decree against Subramonian only in 1995. 10. Learned counsel for the appellant submits that the attempt of the appellant is only to execute the decree obtained against Subramonian through sale of the mortgaged property which happened to be the subject matter of revenue sale as well. That may be so. The fact remains that the appellant had not taken any steps to get the revenue sale set aside, by any manner known to law, though sale was confirmed in favour of respondent No.1 in the year 1999 itself. Appellant has no case that it was not aware of the revenue sale. W.A.No.778 of 2009. - 5 - In fact, respondent No.1 was unnecessarily dragged before the Debts Recovery Tribunal also. More importantly, the appellant had not chosen to file a counter affidavit in the writ petition; but still it has chosen to file this appeal with an inordinate delay. The conduct of the appellant cannot be countenanced or justified. The attempt is obviously to harass respondent No.1. 11. Having carefully perused the entire materials available on record, we are not at all satisfied that the action of the appellant is justified. In our view, it is nothing but sheer abuse of judicial process. Therefore, the writ appeal is dismissed with costs of Rs.50000/- (Rupees fifty thousand) which shall be paid to respondent No.1 within four weeks from today. S.R.Bannurmath, Chief Justice A.K. Basheer, Judge vns