IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 14TH NOVEMBER 2011 / 23RD KARTHIKA 1933 OP(C).No. 171 of 2010(O) ------------------------ OS.22/1961 of I ADDL.SUB COURT, KOZHIKODE .................... PETITIONER --------------- ANNABIYIL AMEEN (SAI) EDUCATIONAL TRUST (REGD), H.O.R-7,1ST FLOOR, WATER TANK ROAD, M.M.D.A.COLONY, ARUMBAKKAM, CHENNAI-106, REP.BY ITS FOUNDER CHAIRMAN AND MANAGING TRUSTEE MOULANA MUHAMMAD ISMAIL BY ADVS. SRI.K.V.SOHAN SRI.P.NARAYANAN RESPONDENTS --------------- THE JOINT RECEIVER, NILAMBUR KOVILAKAM FOREST, REPRESENTING ALL THE PARTIES -SHRI GODA VARMA THIRUMULPAD, P.B.NO.8, PO NILAMBUR, PIN-679 329,KERALA STATE. ADDL. R2 IMPLEADED ------------------------- ADDL. R2 SHYLAJA VARMA, D/O.LATE VMS BHATTATHIRIPAD, RESIDING AT “ MADHAVAN”, TRRA 91/A, PATTUVILAKAVU LANE, AMBALAMUKKU, PEROORKADA P.O., THIRUVANANTHAPURAM; IMPLEADED AS ADDL. R2 AS PER ORDER DATED 1.3.2011 IN IA 13847/10 IN OP (C) 171/10. ADDL. R3. ANASUMOOD THALIYIL SREE BHADRAKALI TEMPLE TRUST REG. NO.245/05/IV, KARAMANA, THIRUVANANTHAPURAM, REPRESENTED BY ITS CHAIRPERSON GAYATRI DEVI, D/O.BAHULEYAN, RESIDING AT MANACAUD VILLAGE, THIRUVANANTHAPURAM TALUK, THIRUVANANTHAPURAM DISTRICT; IMPLEADED AS ADDL. R3 AS PER ORDER DATED 11.11.2011 IN 17830/2011 IN OP(C) 171/2010. VK OP(C).No. 171 of 2010(O) --------------------------------- R1 BY ADV. SRI.R.RAMADAS ADDL. R2 BY ADV. SRI.V.C.MADHAVANKUTTY ADDL. R3 BY ADV. SRI.BIJU .C. ABRAHAM THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 14/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: VK OP(C).No. 171 of 2010(O) --------------------------------- APPENDIX ------------ PETITIONER'S EXHIBITS ----------------------------- EXT.P1. COPY OF THE JUDGMENT IN CIVIL APPEAL 1780-81 OF 1991, DT. 4.4.1991. EXT.P2. COPY OF THE REPORT SUBMITTED BY THE JOINT RECEIVER. EXT.P3. COPY OF THE CHEQUE ISSUED BY THE PETITIONER TO THE JOINT RECEIVER OF NILAMBUR KOVILAKAM FOR RS.2 CRORES, DT. 21.5.1999. EXT.P4. COPY OF THE APPLICATION SUBMITTED BY SMT SHYLAJA VARMA BEFORE THE SUBORDINATE JUDGE'S COURT, KOZHIKODE IN OS. 22 OF 1961, DT. 9.2.2007. EXT.P5. COPY OF THE PETITION FILED BY THE PETITIONER AS I.A. 373/2009, DT. 28.1.2009. EXT.P6. COPY OF THE COUNTER FILED BY THE JOINT RECEIVER, THE RESPONDENT, DT. 27.11.2008. EXT.P7. COPY OF THE LETTER DT. 26.5.2000. EXT.P8. COPY OF THE LETTER DT. 26.5.2000. EXT.P9. COPY OF THE ORDER IN IA. 373/2009 IN I.A. 299/2009 R.R.E/2009 FDIA 701/1968 IN O.S.22/1961, DT. 11.1.2010. RESPONDENT'S EXHIBITS : ------------------------------- ANNEXURE 1. COPY OF THE EXTRACT OF THE MINUTES OF MEETING OF THE GENERAL BODY HELD AT 10.00 AM ON 16.9.2007 IN NILAMBOOR KOVILAKAM. ANNEXURE 2. COPY OF THE IA. NO.5225/2011 IN IA NO.2368 IN O.S. NO.22/1961 ON THE FILE OF THE SUB COURT, KOZHIKODE. OP(C).No. 171 of 2010(O) ----------------------------------- ANNEXURE 3. COPY OF THE IA NO.5226/2011 IN O.S. NO.22/1961 ON THE FILE OF THE SUB COURT, KOZHIKODE. ANNEXURE 4. COPY OF THE IA NO.5386/2011 IN O.S. NO.22/1961 ON THE FILE OF THE SUB COURT, KOZHIKODE. EXT.R1(A). COPY OF THE REPORT SUBMITTED BY THE JOINT RECEIVERS, DATED 16.12.1999. EXT.R1(B). COPY OF THE COUNTER STATEMENT SUBMITTED BY THE RECEIVER, DATED 27.11.2008. EXT.R1(C). COPY OF STATEMENT FILED BY THE RECEIVER, NILAMBUR KOVILAKAM, DATED 20.5.2009. / TRUE COPY / P.A. TO JUDGE VK THOMAS P. JOSEPH, J. -------------------------------------- O.P.(C) No.171 of 2010 -------------------------------------- Dated this the 14th day of November, 2011. JUDGMENT This Original Petition arises from Ext.P9, order dated 11.01.2010 on I.A.Nos.373 of 2009 and 2000 of 2009 filed by petitioner in O.S.No.22 of 1961 of the court of learned Additional sub Judge-I, Kozhikode. That is a suit for partition, as originally stated of 32000 Acres of private forest belonging to Nilambur Kovilakam. The court appointed joint receivers including the 1st respondent (I am told that the other joint receiver is not alive) for management of the property until partition by metes and bounds is effected. While so, the Kerala Private Forest (Vesting and Assignment) Act, 1971 (for short, “the Act”) came into force on 10.05.1971. Thereon, the Conservator of Forest was impleaded as a party to the suit. The court found that 1680 Acres (out of the suit property) is liable to be exempted from the provisions of the Act. That order was confirmed by the Apex Court also (the decision is reported as T.N.Goda Varman Thirumulpad v. State of Kerala (AIR 1991 SC 1503). While so, the joint receivers, including 1st respondent sought permission of learned Sub Judge to sell the property having an extent of 1163.31.5 Acres. The court granted permission on 07.02.1997 for sale of the property by accepting tenders. Necessary publication was made in that regard. Petitioner quoted `15 crores as price of the 1163.31.5 Acres on 12.10.1999 and that being the highest quoted amount was accepted. Petitioner deposited a cheque for Rupees two crores with the joint receivers. According to the petitioner, the receivers delayed OP(C)No.171/2010 2 issue of documents to the petitioner to facilitate it getting permission from the Reserve Bank of India. Further contention of petitioner is that the receivers tried to sell the property to others. In that situation, petitioner approached the learned Sub Judge seeking confirmation of sale in his favour. That application was dismissed by Ext.P9, order. Additional 2nd respondent in this Original Petition is the 11th defendant in the suit who is a member of the Nilambur Kovilakam and a sharer. Additional 3rd respondent is a third party who was allowed to be impleaded in this proceeding as per order dated 11.11.2011 on I.A.17830 of 2011. It is said, Nilambur Kovilakam decided that they are ready and willing to transfer the property to the additional 3rd respondent for a sum of `30 crores. In the light of that, the additional 3rd respondent filed application before the learned Sub Judge seeking appropriate relief. Additional 2nd respondent filed I.A.No.564 of 2009 before learned Sub Judge stating that she is agreeable to the proposal made by additional 3rd respondent for purchase of the property for `30 crores (learned counsel for additional 2nd respondent submitted that now, the additional 2nd respondent stands by the views of 1st respondent, the receiver). 2. So far as Ext.P9, order is concerned, it is contended by learned counsel for petitioner that way back on 12.10.1999 petitioner quoted the highest amount (`15 crores) and that was accepted. Consequently petitioner deposited cheque for Rupees two crores with the joint receivers. Thereafter on account of OP(C)No.171/2010 3 delay on the part of the joint receivers sale was not confirmed in favour of petitioner. In that view of the matter learned Sub Judge ought to have allowed I.A.Nos.373 and 2000 of 2009, it is contended. 3. Learned counsel for 1st respondent (receiver) submitted that though petitioner had quoted `15 crores (that being the highest amount), that was in the year, 1999 and though a cheque for Rupees two crores was deposited with the joint receivers including the 1st respondent, petitioner did not deposit sufficient amount in his account to honour the said cheque and instead, petitioner was seeking time to deposit the amount which indicated lack of bonafides on the part of petitioner. It is also pointed out by the learned counsel that in Ext.P5, I.A.No.373 of 2009 filed after ten years of the tender made by petitioner, it sought permission to deposit `35 crores instead of `15 crores. Later petitioner filed I.A.No.2000 of 2009 seeking permission to deposit `15 crores stating that sum of `35 crores referred to in I.A.No.373 of 2009 was a mistake. It is in the above circumstances that learned Sub Judge was not inclined to accept I.A.Nos.373 and 2000 of 2009. It is submitted that there is no reason to interfere with the said order. Learned counsel for additional 2nd respondent, a member of Nilambur Kovilakam supported the 1st respondent. 4. Learned counsel for additional 3rd respondent contended that the Kovilakam to which the property belonged has decided to transfer the property to additional 3rd respondent for `30 crores and that being double the amount quoted by petitioner, court below should have accepted the application filed by OP(C)No.171/2010 4 the additional 3rd respondent. In the meantime, yet another third party came with an offer to purchase the 1163.31.5 Acres for `37 crores. Again it was the turn of the additional 3rd respondent. It came with three interlocutory applications, I.A.Nos.5225 of 2011, 5226 of 2011 and 5386 of 2011 for its impleadment in I.A.No.2368 of 2011 filed by the third party (who offered `37 crores), to accept the bank guarantee for `38 crores and for issuing necessary direction to the receiver. The said applications, I am told, are pending before learned Sub Judge. 5. Coming back to Ext.P9, the order question is whether interference is required. True that petitioner quoted the highest amount of `15 crores in the year, 1999. But that tender has not fructified in the sense that the sale was not confirmed. True that petitioner and 1st respondent have their own versions as to why the sale was not confirmed. But, fact remains that for about ten years, petitioner did not move the learned Sub Judge for appropriate directions in the matter. It is only in the year, 2009 that petitioner came with I.A.Nos.373 and 2000 of 2009 with conflicting price for the properties. In I.A.No.373 of 2009 petitioner sought permission to deposit `35 crores instead of `15 crores. But in I.A.No.2000 of 2009 it is stated that the amount quoted was `15 crores and quoting of `35 crores was a mistake. Learned counsel for petitioner would contend that what was stated in I.A.No.2000 of 2009 was that the original quoted amount was `15 crores which petitioner expressed willingness to deposit. OP(C)No.171/2010 5 6. Whatever that be those claims, petitioner came to the court with the offer to deposit the amount after ten years of quoting `15 crores in the year, 1999. Since third parties also came offering higher amount and in the fact and circumstance it does not appear to me appropriate that in the year 2011, the amount quoted by petitioner in the year, 1999 (`15 crores) is accepted and the sale confirmed in the name of petitioner. According to the additional 3rd respondent, Kovilakam has expressed its willingness to transfer the property to it for a sum of `30 crores. Though additional 2nd respondent, a member of the Kovilakam was initially agreeable for that, now she is not agreeable. The appropriate course in the circumstances is to conduct a fresh auction of the property so that anybody who is prepared to pay the highest amount could take the property. In that view of the matter I do not find reason to interfere with Ext.P9, order. But having regard to the circumstances it is necessary to issue directions to the learned Sub Judge as to the future course to be adopted in the matter. 7. Having heard counsel on both sides it appear to me that public auction of the property could be conducted after giving sufficient publication in the vernacular dailies having sufficient circulation in the State. It shall be a condition for participation in the auction that those who intended to take part in the auction submitted their tenders in a sealed cover quoting the amount not less than `15 crores to show their earnests and bonafides in taking part in the auction. They have to deposit `15 crores and produce bank guarantee or fixed deposit receipt in the name of the party who intends to take part in the OP(C)No.171/2010 6 auction subject to the conditions herein below prescribed. On the date fixed for auction, the tenders so submitted shall be opened and the auction shall start from the highest amount quoted. Resultantly this Original Petition is disposed of as follows: i. Challenge to Ext.P9, order fails. ii. Learned Sub Judge is directed to conduct fresh public auction of the 1163.31.5 acres subject to the following conditions: (a) The date for public auction shall be fixed by the learned Sub Judge sufficiently in advance and sufficient publication in the vernacular dailies having sufficient circulation in the State of Kerala shall be made about the date, time and place of public auction and the conditions. (b) It shall be a condition to take part in the auction that those who intended to take part in the auction submits tenders in sealed cover before the learned Additional Sub Judge-I, Kozhikode quoting the price. The amount quoted shall not be less than `15 crores. The tender shall reach the court atleast one week before the date fixed for auction. OP(C)No.171/2010 7 (c) Along with the tender, the tenderer shall either produce bank guarantee or fixed deposit receipt either in the name of the Additional Sub Judge-I, Kozhikode or in the name of the tenderer for a sum not less than `15 crores. (d) In case fixed deposit is made in the name of the tenderer, the fixed deposit receipt shall bear the condition that the said amount shall not be withdrawn and that no loan shall be raised on the security of the said receipt until appropriate orders are received from the learned Sub Judge. (e) The date, time and place for auction shall be fixed by the learned Sub Judge. (f) Tenders shall be opened at the time of auction and the auction shall start from the highest amount quoted. Only those who have quoted amount not less than `15 crores alone and produced bank guarantee/FD receipt alone shall be allowed to take part in the auction. (g) Since third parties also could take part in the auction as aforesaid their impleadment in the suit or in pending application is not necessary and learned Sub Judge shall dispose of the pending applications preferred by the third parties accordingly without prejudice to their right to take part in the auction. OP(C)No.171/2010 8 (h) The time for deposit of the balance amount of bid in the auction (less the amount tendered and furnished) shall be fixed by the learned Sub Judge after hearing the parties. If the balance amount is not deposited within the specified time, the auction shall be cancelled. (i) It shall be open to the learned Sub Judge to fix further conditions as circumstances warranted after hearing the parties. (j) Expense for publication and other formalities to be complied with for the conduct of auction shall come from the account of the 1st respondent, receiver. (k) Learned Sub Judge shall schedule auction and the outer limit for deposit of the balance amount in such a manner that the proceedings could be completed without further delay. THOMAS P.JOSEPH, Judge. cks