IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 18TH OCTOBER 2011 / 26TH ASWINA 1933 OP(C).No. 33 of 2010(O) --------------------------------- [C.M.A.NO.4/2008 OF ADDITIONAL DISTRICT COURT-II, KOZHIKODE I.A. NO.4187/2007 IN OS.NO.349/2007 OF II ADDITIONAL SUB COURT,KOZHIKODE] .................... PETITIONER: ------------------- 1. I.N.G VYSYA BANK LTD., SHEMA BUILDING, RAVIPURAM, COCHIN-16, REPRESENTED BY SRI.RAMESH VASUDEVAN, MANAGER, CONSUMER ASSETS, I.N.G VYSYA BANK LIMITED, RAVIPURAM, COCHIN-36. 2. THE MANAGER, I.N.G VYSYA BANK LTD., P.K.COMPLEX, CALICUT-32, REPRESENTED BY SRI.M.MURALEEDHARAN, BRANCH MANAGER, I.N.G VYSYA BANK LTD., KOZHIKODE BRANCH, KOZHIKODE. BY ADVS. SRI.R.S.KALKURA, SRI.M.S.KALESH, SRI.HARISH GOPINATH, SRI.V.VINAY MENON, SRI.M.AJAY (IRUMPANAM). RESPONDENT: --------------------- K.C.ANITHA, D/O.CHANTHUKUTTY, 29/209. NETHAJI NAGAR, KOTTOOLY, KOZHIKODE DISTRICT. BY SRI.K.R.B.KAIMAL, SENIOR ADVOCATE, ADVS. SRI.B.UNNIKRISHNA KAIMAL, SRI.T.ISSAC. THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 18/10/2011,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: O.P.(C).NO.33/2010-O: APPENDIX PETITIONER'S EXHIBITS:- EXT.P.1: COPY OF THE POWER OF ATTORNEY DTD. 24/12/2007 AUTHORISING THE MANAGER TO REPRESENT THE P.1. BANK. EXT.P.1.A: COPY OF THE POWER OF ATTORNEY DTD. 18/08/1993 AUTHORISING THE BRANCH MANAGER TO REPRESENT THE P.2. BANK. EXT.P.2: COPY OF THE PLAINT IN O.S. NO. 349/2007 ON THE FILE OF THE SUB COURT, KOZHIKODE. EXT.P.3: COPY OF THE I.A. NO. 4187/2007 IN O.S. NO. 349/07 OF THE SUB COURT, KOZHIKODE. EXT.P.4: COPY OF THE STATEMENT OF ACCOUNT KEPT BY THE PETITIONER BANK IN THE NAME OF THE PLAINTIFF. EXT.P.5: COPY OF THE COUNTER AFFIDAVIT IN I.A. NO. 4187/07 IN O.S. NO. 349/2007 OF THE SUB COURT, KOZHIKODE. EXT.P.6: COPY OF THE LETTER DTD. 16/05/2007 ISSUED BY THE 1ST DEFENDANT TO THE PLAINTIFF. EXT.P.7: COPY OF THE RECEIPT EVIDENCING ISSUANCE OF EXT.P.6. EXT.P.8: COPY OF THE COVER RETURNED PERTAINING TO THE SAID NOTICE DTD. 16/05/2007. EXT.P.9: COPY OF THE LETTER DTD. 16/08/2007 ISSUED BY THE PETITIONER/DEFENDANT TO THE PLAINTIFF/RESPONDENT. EXT.P.10: COPY OF THE RETURNED COVER WITH NOTICE OF EXT.P.9. EXT.P.11: COPY OF THE LETTER DTD. 29/08/2007 ISSUED BY THE PETITONER ALONG WITH THE ENCLOSURE TO THE DEFENDANT. EXT.P.12: COPY OF THE POSTAL ACKNOWLEDGMENT INDICATING ACCEPTANCE OF EXHIBIT P.11. EXT.P.13: COPY OF THE AGREEMENT DTD. 24/08/2005 EXECUTED BY THE PLAINTIFF IN FAVOUR OF THE BANK. EXT.P.14: COPY OF THE POWER OF ATTORNEY EXECUTED BY THE PLAINTIFF DTD. 24/08/2005 IN FAVOUR OF THE BANK. EXT.P.15: COPY OF THE TENDERS SUBMITTED BY MR. SREESANTH DTD. 13/08/2007 BEFORE THE PETITIONERS. O.P.(C).NO.33/2010-O: EXT.P.16: COPY OF THE TENDERS SUBMITTED BY MR. ISHAK DTD. 24/07/2007 BEFORE THE PETITIONERS. EXT.P.17: COPY OF THE TENDERS SUBMITTED BY MRS. BINDU.K.V. BEFORE THE PETITIONERS. EXT.P.18: COPY OF THE TENDERS SUBMITTED BY MR. RAJESH DTD. 13/08/2007 BEFORE THE PETITIONERS. EXT.P.19: COPY OF THE TENDERS SUBMITTED BY MR. ISHAK & SAMEER.V DTD. 24/07/2007 BEFORE THE PETITIONERS. EXT.P.20: COPY OF THE BID ACCEPTANCE FORMAT FROM THE PURCHASER MR. SREESANTH DTD. 13/08/2007. EXT.P.21: COPY OF THE LETTER ISSUED BY MR. SREESANTH REQUESTING FOR RELEASE OF THE VEHICLE FROM THE YARD IN `AS IS WHERE IS' CONDITION DTD. 13/08/2007. EXT.P.22: COPY OF THE FORM 36 ISSUED BY THE PETITIONER TO THE REGISTERING AUTHORITY. EXT.P.23: COPY OF THE ORDER DTD. 19/12/2007 IN I.A. NO. 4187/07 IN O.S. NO. 349/07 IN O.S. NO. 349/07 OF SUB COURT, KOZHIKODE. EXT.P.24: COPY OF THE JUDGMENT DTD. 10/08/2010 IN C.M.A. NO.4/2008 OF THE DISTRICT COURT, KOZHIKODE. //TRUE COPY// P.A. TO JUDGE Prv. THOMAS P. JOSEPH, J. -------------------------------------- O.P.(C) No.33 of 2010 -------------------------------------- Dated this the 18th day of October, 2011. JUDGMENT This civil revision arises from the judgment of learned II Additional District Judge, Kozhikode in C.M.A.No.4 of 2008 confirming the order passed by the learned II Additional Sub Judge, Kozhikode on I.A.No.4187 of 2007 in O.S.No.349 of 2007. That is a suit filed by the respondent for a mandatory injunction to the petitioners to release the vehicle referred to in the plaint to the respondent and restraining petitioners from selling the said vehicle or creating any document of transfer regarding the same. Along with the suit, respondent filed I.A.No.4187 of 2007 for an order of temporary, mandatory injunction to release the vehicle. That application was opposed by the petitioners. Learned Sub Judge passed Ext.P23, order dated 19.12.2007. Learned Sub Judge stated that though petitioners contended that the vehicle is already sold there is no case that registration certificate has been transferred and that identity of the buyer is also not revealed by petitioners. Learned Sub Judge granted an order of mandatory injunction and directed petitioners to deliver the vehicle to respondent on the latter depositing `1,20,000/- in court with a rider, that the actual liability of the respondent could be determined later. Petitioners challenged that order in C.M.A.No.4 of 2008. Learned Additional District Judge by Ext.P24, judgment confirmed the order. OP(C)No.33/2010 2 2. It is contended by learned counsel for petitioners that on the respondent defaulting payment of installments, notice was issued to the respondent requiring to pay the amount due and intimating that in case the amount is not paid within seven days the agreement will be terminated and steps will be taken to repossess and sell the vehicle. That notice was returned unserved. Later, petitioners re-possessed the vehicle, sold it after three months and realized `2,69,000/-. That amount was adjusted to the amount due from the respondent and the balance sum of `39,655/- payable to the respondent was kept in deposit. Petitioners issued Ext.P11, notice dated 29.08.2007 intimating the respondent about the recession of the agreement, sale of the vehicle and deposit of `39,655/- which is due to her. Learned counsel submits that along with Ext.P11, notice, a copy of the notice already sent to the respondent (which she refused to accept) was also appended. Notice dated 29.08.2007 was received by the respondent on 05.09.2007 and thereafter 26.09.2007 she laid the suit pleading ignorance about the transaction mentioned in Ext.P11, notice. It is contended by learned counsel that since the vehicle was already sold, the mere fact that registration was not changed is irrelevant. So far as sale of movables is concerned what is relevant is delivery of vehicle and passing of sale consideration. Effecting change in the registration is only a requirement under the provisions of the Motor Vehicles Act. In the circumstances, learned Sub Judge was not correct in directing petitioners to produce the vehicle which was already sold. Learned District Judge in the OP(C)No.33/2010 3 circumstances was not correct in confirming the order of learned Sub Judge. 3. Learned counsel for respondent contends that no document was produced by petitioners in support of the claim of sale of vehicle either in the trial court or the appellate court. Petitioners did not even reveal identity of purchaser of the vehicle. In the circumstances learned District Judge is justified in passing Ext.P24, judgment confirming Ext.P23, order passed by learned Sub Judge. 4. It is not disputed by the learned counsel for petitioners that the documents now sought to be pressed into service were not produced in the trial court or even the appellate court. In that view I do not find reason to find fault with learned Sub Judge or learned District Judge in passing Exts.P23 and P24, order/judgment. But having regard to the contention which petitioners have raised in this proceeding and the documents produced, I am inclined to think that petitioners must be given an opportunity to produce the said documents and contest I.A.No.4187 of 2007. In that view of the matter I am inclined to interfere with the order/judgment under challenge and remit I.A.No.4187 of 2007 to the trial court for fresh decision. Resultantly this Original Petition is allowed as follows: i. Exts.P23 and P24, order/judgment on I.A.No.4187 of 2007 (in O.S.No.349 of 2007 of the learned II Additional Sub Judge, Kozhikode) and C.M.A.No.4 of 2008 of the learned II Additional District Judge, Kozhikode are set aside. OP(C)No.33/2010 4 ii. I.A.No.4187 of 2007 is remitted to the court of learned II Additional Sub Judge, Kozhikode for fresh decision after giving both sides opportunity to produce relevant documents in support of their respective contention. iii. It is also open to the learned II Additional Sub Judge, Kozhikode to dispose of the suit itself if preliminary steps are over since the suit is of the year, 2007. I.A.No.16179 of 2010 will stand dismissed. THOMAS P.JOSEPH, Judge. cks