Kerala High Court
WP(C)/17806/2008 of FEDERAL BANK LTD. Vs STATE OF KERALA AND OTHERS on 31 December 2012
COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE ANTONY DOMINIC MONDAY, THE 31ST DAY OF DECEMBER 2012/10TH POUSHA 1934 WP(C).No. 17806 of 2008 (I) --------------------------- PETITIONER: ----------- FEDERAL BANK LTD. HEAD OFFICE AT ALUVA, BRANCH AT POOCHAKKAL, CHERTHALA, ALAPPUZHA
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE ANTONY DOMINIC
MONDAY, THE 31ST DAY OF DECEMBER 2012/10TH POUSHA 1934
WP(C).No. 17806 of 2008 (I) --------------------------- PETITIONER:----------- FEDERAL BANK LTD. HEAD OFFICE AT ALUVA, BRANCH AT POOCHAKKAL, CHERTHALA, ALAPPUZHA DISTRICT, REPRESENTED BY ITS MANAGER, GEORGE JOSEPH. BY ADVS.SRI.A.ANTONY SMT.LEELAMMA ANTONY
RESPONDENT(S):--------------
1. STATE OF KERALA, REP BY DISTRICT COLLECTOR, ALAPPUZHA.
2. TAHSILDAR, CHERTHALA.
3. B.MOHANAN @ C.B.MOHANAN, S/O.C.G.BHASKARAN, GOVINDALAYAM, K.K.PURAM P.O., PALLIPURAM VILLAGE, CHERTHALA, PARTNER OF CHONAPPALLIL ENTERPRISES, K.K.PURAM P.O., PALLIPURAM VILLAGE, CHERTHALA.
BY ADV.SRI.P.A.MOHAMMED SHAH, SR.GOVERNMENT PLEADER
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 31-12-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
AS
APPENDIX
RESPONDENT'S EXHIBITS:NIL
/TRUE COPY/P.A.TO JUDGE
ANTONY DOMINIC,J
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W.P.(C)No.17806 of 2008
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Dated this the 31[st] day of December, 2012
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JUDGMENT
The petitioner is a scheduled Bank. Messers Chonappallil Enterprises, a partnership firm, of which, thethird respondent was also a partner, availed of a cash creditfacility of Rs.4 lakhs from the Bank on 12.03.1985. Assecurity, 426.75 cents of property was mortgaged and itincluded 18 cents of land comprised in survey No.127/21-3of Pallippuram Village belonging to the third respondentalso.
2. The firm committed default in paying the dues and finally, the Bank filed O.S.No.12 of 1988 before the SubCourt, Cherthala to recover its dues. The suit was decreedas per Ext.P2. 18 cents of land mentioned above was sold incourt auction and was purchased by the Bank and the salewas confirmed on 17.03.1996. Finally, on 25.05.1996,Ext.P3 sale certificate was issued and in that sale certificate, 18 cents of land mentioned above has beenincluded at serial No.10 of its schedule.
3. Subsequently, respondents 1 and 2 filed Ext.P4
claim petition under Order XX1 Rule 58 of the CPC and inthat claim petition, this 18 cents mentioned above was alsoscheduled. The claim petition was dismissed by order dated 18.12.2002. Thereafter, the property covered by Ext.P3 salecertificate was delivered to the Bank on 03.04.2003.
4. It appears that in the meanwhile, recovery proceedings were initiated against the property forrecovering the 'kist arrears' of Sri.C.G.Bhaskaran, thedeceased father of the third respondent, who according tothe Bank expired on 26.05.1999. Coming to know of that,Ext.P5 notice was issued by the Bank, asserting its title overthe property. In spite of the notice, Ext.P6 sale notice waspublished by the revenue recovery authorities proposing tosell the aforesaid 18 cents comprised in Survey No.127/21-3. To that notice, the petitioner filed Ext.P7 objection and thereafter filed this writ petition.
5. A counter affidavit has been filed by the respondents. According to the counter affidavit in order torecover the dues of late Sri.C.G.Bhaskaran, for the years1980-1981 and 1981-1982, Revenue Recovery proceedingswere initiated and the property was attached on 28.06.2002and Ext.P6 sale notice was issued in December, 2002. It isalso stated that when Revenue Recovery proceedings wereinitiated the third respondent along with his brother filedWrit Petition No.5638 of 2003 and that this Court orderedthat an enquiry be conducted whether the properties held bythem were self acquired properties or were inherited fromthe deceased defaulter. It is also stated that accordingly,the District Collector constituted an Enquiry Committee andthat the Deputy Collector conducted an enquiry and orderedcontinuation of the recovery proceedings against 18 cents ofproperty mentioned above.
6. I heard the counsel for the petitioner and thelearned Government Pleader appearing for the respondents.
7. Admittedly, the property was one mortgaged to the Bank. On that basis, the Bank filed O.S.No.12 of 1988 andobtained Ext.P2 decree. On the basis of the said decree, theproperty was sold and finally, Ext.P3 sale certificate wasissued in favour of the Bank, which includes the property inquestion also. It was accordingly that rejecting Ext.P4 claimpetition, the property was delivered to the Bank on03.04.2003. It is long after the issuance of the salecertificate, the requisition in question under the RevenueRecovery Act was issued on 04.09.2000 and the propertywas attached on 28.06.2002.
8. The recovery proceedings in question against theproperty could have been possible only if the property wasone inherited by the third respondent from his deceasedfather or one which was transferred in his favour after theliability was incurred and to defeat the Revenue. Although an enquiry was stated to have been conducted in pursuanceto the directions of this Court in the judgment in W.P.(c)No.5638 of 2003, there is no averment in the counteraffidavit filed by respondents 1 and 2 that the property iseither an inherited one or transferred by the defaulter to thethird respondent after incurring the liability and to defeatthe Revenue. In other words on the material now availablebefore this Court, it is only possible to conclude that theproperty is a self acquired property of the third respondent.If that be so, the property of the third respondent could nothave been proceeded against for recovery of the dues of hisdeceased father whose liability the recovery proceedingswere initiated. In such circumstances, I am unable to upholdExt.P6 sale notice.
Therefore, the writ petition is disposed of quashingExt.P6.
Sd/-
ANTONY DOMINIC, JUDGE