IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN TUESDAY, THE 9TH DECEMBER 2008 / 18TH AGRAHAYANA 1930 WP(C).No. 34931 of 2008(H) -------------------------- PETITIONER(S): --------------- NIBU THOMAS, S/O.THOMAS, KULAKKATTUVAYIL,MUZHOOR P.O. ALAKUNNAM VILLAGE, KOTTAYAM DISTRICT. BY ADV. SRI.T.C.SURESH MENON SRI.JIBU P THOMAS RESPONDENT(S): --------------- 1. THE FEDERAL BANK LTD., PALAKKAD BRANCH, REPRESENTED BY ITS MANAGER. 2. RECOVERY OFFICER, DEBT RECOVERY TRIBUNAL, PANAMPILLY NAGAR, ERNAKULAM. R1 BY ADV. SRI.GEORGE VARGHESE (MANACHIRACKEL) THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 09/12/2008, ALONG WITH W.P(C).31069 OF 2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOTTATHIL B.RADHAKRISHNAN, J. ------------------------------------------- W.P(C).Nos.34931 & 31069 OF 2008 ------------------------------------------- Dated this the 9th day of December, 2008 JUDGMENT 1. W.P(C).31069/08 was disposed of as per judgment dated 6.11.2008. On 26.11.2008, while dealing with W.P(C). 34931/09, it was ordered that W.P(C).31069/08 be listed to be spoken to along with W.P(C).34931/08. The counsel for parties in both cases are present. They are heard. 2. Dinesh, the petitioner in W.P(C).31069/08 and Divya Suresh are the children of late Sundereshan. Two items of properties were brought to sale by the creditor Federal Bank. W.P(C). 31069/08 was filed by Dinesh, seeking a direction that item No.1 listed for sale may be excluded from the sale, that being an item alloted to his sister Divya Suresh in terms of the last wishes of their father and that it is essential that Dinesh wipes off the liability to preserve family peace. After hearing parties, that writ petition was ordered on 6.11.2008 as follows: WPC.34931/08 Page numbers “In the aforesaid circumstances, this writ petition is ordered directing that the petitioner shall deposit an amount of Rs.20,00,000/- before the 1st respondent within a period of two weeks from now. If such deposit is made, item No.2 alone will be first taken up for sale and item No.1 will be taken up only if the sale of item No.2 does not generate the entire remaining outstandings. If no deposit as aforesaid is made, item Nos.1 and 2 can be sold even in one lot or in two lots on 24.11.2008. The surplus, if any, following the sale will be disbursed in accordance with law.” 3. When further proceedings were taken out, the bank focused on an item, which, the petitioner in W.P(C).34931/08, Nibu Thoms, states, was transferred to him by the mother of Dinesh and Divya. Nibu Thomas points out that the present action against the property sold to him is a direct fall out of the effect of the judgment dated 6.11.2008 in W.P(C).31069/08. 4. When W.P(C).34931/08 came up on 26.11.2008, it was noticed that the situation in hand is essentially the making of WPC.34931/08 Page numbers Dinesh, the petitioner in W.P(C).31069/08, because, he was able to obtain the judgment in that case on the basis of the statements made touching the affairs of the family. While the learned counsel for Dinesh states that his client was not aware of the transfer in favour of Nibu Thomas by the mother of Divya, I am not prepared to swallow that statement. Whatever that be, as of now, the learned counsel for the petitioner in W.P(C).31069/08 states that his client has paid an amount of Rs.1,00,000/- today, after paying the amount of Rs.20,00,000/- following the judgment dated 6.11.2008 in W.P(C).31069/08 and to avoid further complications, his client is prepared to pay off the remaining outstandings also, provided he gets some time. 5. Recording the aforesaid submissions on behalf of Dinesh, the petitioner in W.P(C).31069/08, W.P(C).34931/08 is ordered directing that all further proceedings in relation to the loan in question will stand deferred till the end of the current financial year and if the entire amounts due under the transaction is WPC.34931/08 Page numbers paid by that time, further distress action will be dropped. Otherwise, the property shown as item No.1 in the sale notice will be first put to sale and only then, if it becomes necessary would item No.2 in the sale notice be put to sale. This will be treated as the last opportunity. W.P(C).31069/08, disposed of by judgment dated 6.11.2008 would also stand regulated by what is stated herein above. Sd/- THOTTATHIL B.RADHAKRISHNAN, Judge kkb.