IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN TUESDAY, THE 12TH AUGUST 2008 / 21ST SRAVANA 1930 WP(C).No. 4659 of 2008(D) --------------------------------- PETITIONER: --------------- HAMZA HAJI, S/O.MOIDU HAJI AGED 48 YEARS, PAIRAVALAPPIL HOUSE AKALAD DESOM, PUNNAYOOR AMSOM, CHAVAKKAD TALUK TRISSUR DISTRICT. BY ADV. SRI.KRB.KAIMAL (SR.) SMT.LATHA PRABHAKARAN SRI.K.M.JAMALUDHEEN RESPONDENTS: ------------------- 1. THE KERALA FINANCIAL CORPORATION VELLAYAMBALAM, THIRUVANANTHAPURAM-33 REPRESENTED BY ITS MANAGING DIRECTOR. 2. THE CHIEF MANAGER THE KERALA FINANCIAL CORPORATION, BRANCH OFFICE SMART CENTRE, KAKKALAI, TRISSUR-21. 3. THE DEPUTY TAHASILDAR (RR) THE KERALA FINANCIAL CORPORATION, BRANCH OFFICE SMART CENTRE, KAKKALAI, TRISSUR-21. 4. THE DEPUTY TAHASILDAR (RR) DISTRICT COLLECTORATE, CIVIL STATION, TRISSUR. 5. DAVID @ THAVU, S/O.EYYAPPAN KANHIRATHINGAL HOUSE, THEKKEPURAM DESOM KUNNAMKULAM VILLAGE, THALAPPILLY TALUK TRISSUR DISTRICT. 6. ROY, S/O.DAVID, KANHIRATHINGAL HOUSE THEKKEPURAM DESOM, KUNNAMKULAM VILLAGE THALAPPILLY TALUK, TRISSUR DISTRICT. WP(C).No. 4659 of 2008 7. CHARLY, S/O.DAVID, KANHIRATHINGAL HOUSE THEKKEPURAM DESOM, KUNNAMKULAM VILLAGE THALAPPILLY TALUK, TRISSUR DISTRICT. 8. GOPI, GOPI NIVAS,AMBADI RESTAURANT NEAR C.M.S. SCHOOL, TRISSUR. BY ADV. SRI.DEEPU THANKAN FOR R6-7 SRI.M.M.SAYED MUHAMMED, SC, KFC FOR R1-2 GOVERNMENT PLEADER SRI. I.V. PRAMOD. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 12/08/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 4659 of 2008 EXT.P1: COPY OF THE SALE DEED OF THE KUNNAMKULAM SUB REGISTRY NO.1052/1/2000 IN FAVOUR OF THE PETITIONER. EXT.P2: COPY OF THE SALE DEED OF THE AKKIKAVU SUB REGISTRY NO.896/1/2000 IN FAVOUR OF R7 BY PETITIONER. EXT.P3(a): COPY OF THE RECEIPT ISSUED BY THE KUNNAMKULAM MUNICIPALITY DATED 31.1.2008. EXT.P3(b): COPY OF THE RECEIPT ISSUED BY THE KUNNAMKULAM MUNICIPALITY DATED 31.1.2008. EXT.P3(c): COPY OF THE RECEIPT ISSUED BY THE KUNNAMKULAM MUNICIPALITY DATED 31.1.2008. EXT.P3(d): COPY OF THE RECEIPT ISSUED BY THE KUNNAMKULAM MUNICIPALITY DATED 31.1.2008. EXT.P3(e): COPY OF THE RECEIPT ISSUED BY THE KUNNAMKULAM MUNICIPALITY DATED 31.1.2008. EXT.P3(f): COPY OF THE RECEIPT ISSUED BY THE KUNNAMKULAM MUNICIPALITY DATED 31.1.2008. EXT.P3(g): COPY OF THE RECEIPT ISSUED BY THE KUNNAMKULAM MUNICIPALITY DATED 31.1.2008. EXT.P3(h): COPY OF THE RECEIPT ISSUED BY THE KUNNAMKULAM MUNICIPALITY DATED 31.1.2008. EXT.P4: COPY OF THE REPRESENTATION OF THE PETITIONER TO R2 DT. 28.1.08. EXT.P5: COPY OF THE REPRESENTATION OF THE PETITIONER TO R1 DT. 2.2.08. TRUE COPY PA TO JUDGE. S. SIRI JAGAN, J. ------------------------------------ W.P.(C)No.4659 OF 2008 ---------------------------------------- Dated this the 12th day of August, 2008 JUDGMENT The petitioner purchased certain shop rooms in a three storied shopping complex situated in about 39 cents, which were mortgaged by respondents 5 to 7 to the Kerala Financial Corporation as security for the loan amounts due from respondents 5 to 7 to the Kerala Financial Corporation. Since the borrowers defaulted repayment of loan amounts, the property in question, which was mortgaged as security, was put to auction, in which the 8th respondent is stated to have purchased the same. The petitioner would submit that the sale was not conducted properly in so far as the property worth more than Rs.5 crores has been sold to the 8th respondent for Rs.1.30 crores. According to the petitioner, being the owner of the portion of the building, the KFC ought to have given notice to him also. He would even submit he is prepared to purchase the property for the very same amount offered by the 8th respondent or even a higher amount. He is also willing to participate in a fresh auction, if it is W.P.(c)No.4659/08 2 conducted properly. The petitioner, therefore, seeks the following reliefs: “i) Declare that the auction of the property R.C. Bazar, Kunnamkulam including the property covered under Ext-P1 sale deed is illegal and hence liable to be cancelled. ii) Issue a writ of mandamus or any other writ, order or direction directing the respondents 1 to 4 to cancel the auction of the property R.C. Bazar, Kunnamkulam. iii) Issue a writ of manadamus or any other writ, order or direction directing the respondents 1 to 4 to put the property excluding the property covered under Ext-P1 sale deed for re-auction after complying with all the legal formalities including public notice. iv) Issue a writ of mandamus or any other writ, order or direction directing the respondents 1 to 4 to put the property excluding the property covered under Ext.P1 sale deed for re-auction after fixing the upset price based on assessing the present market value of the property”. 2. Notices have been issued to all respondents including the 8th respondent. Respondents 5 to 8 have not chosen to enter appearance and contest this writ petition. 3. I have heard the learned counsel for the petitioner as well as the learned Standing Counsel appearing for the Kerala Financial Corporation. The learned Standing Counsel for the KFC submits that the sale has been conducted after complying with all the procedural formalities. He would further submit that the petitioner purchased the shop rooms only in W.P.(c)No.4659/08 3 2000 and as a subsequent purchaser, the petitioner is not entitled to any notice in the matter. However, the learned Standing counsel admits that the 8th respondent has not yet paid the entire amounts due within the time stipulated for payment of the sale. Standing Counsel would submit that the 8th respondent has not paid the balance amount because of the other disputes including the claim of the petitioner over the property. 4. In so far as the 8th respondent has not chosen to appear and contest this matter and since the KFC themselves admitted that the 8th respondent has violated the conditions of the sale, the KFC is no longer bound by the same. That being so, I am of opinion that in the peculiar facts and circumstances of the case, especially the contention of the petitioner that the property is worth more than Rs.5 crores and he is willing to purchase it for the very same amount offered by the 8th respondent or more than the said amount, and the 8th respondent has not chosen to contest the matter, I feel that it is only in the interest of all that the 1st respondent conducts a fresh sale, after complying with the necessary formalities and after cancelling the sale with the 8th respondent for non- W.P.(c)No.4659/08 4 compliance with the conditions of the sale. Such fresh sale proceedings shall be initiated and completed within a period of three months from the date of receipt of a copy of this judgment. The writ petition is disposed of as above. S. SIRI JAGAN, JUDGE Acd W.P.(c)No.4659/08 5