IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C) No. 31933 of 2007(B)
1. GIC HOUSING FINANCING LTD. REP. BY ITS
... Petitioner
Vs
1. STATE OF KERALA
... Respondent
2. THE DISTRICT COLLECTOR, TRIVANDRUM.
3. THE TAHSILDAR (RR), TRIVANDRUM.
4. THE RECOVERY OFFICER,
5. SMT.JAYASREE NARAYANA PILLAI,
6. SHRI.R.JAYACHANDRAN, KAVUVILA HOUSE,
7. THE SOUTH INDIAN BANK LTD.,
For Petitioner :SRI.K.JAJU BABU
For Respondent :SRI.GEORGE VARGHESE (MANACHIRACKEL)
The Hon'ble MR. Justice THOTTATHIL B.RADHAKRISHNAN
Dated :24/01/2008
O R D E R
THOTTATHIL.B.RADHAKRISHNAN, J.
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W.P(c)No.31933 OF 2007
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Dated this the 24th day of January, 2008
JUDGMENT
Notice to respondent No.5 returned unserved, stating
“unclaimed”. I am satisfied that notice has been taken out in his
proper address. It is declared that notice to respondent No.5 is
duly served.
2. The 5th respondent is the owner of an apartment in a
building, of which the 6th respondent is the builder. For the
purpose of the construction in question an agreement was
executed between the petitioner, GIC Housing Financing Ltd, and
respondents 5 and 6. However no charge was created on the
property by that exercise. Though a letter of authorisation for
equitable mortgage was given with a power of attorney,
thereafter a deed was executed in favour of the 5th respondent
and she mortgaged that document before the 7th respondent bank
and obtained a loan. By deposit of that title deed, interest
accrued in favour of the 7th respondent on the land and building in
question.
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3. Thereafter the petitioner invoked the provisions of the
Revenue Recovery Act and attached the property. This was
followed by a recovery certificate issued by the Debt Recovery
Tribunal in favour of the 7th respondent.
4. On the strength of the attachment under the Review
Recovery Act, there is no charge in favour of the petitioner that
could be treated as one which would override the rights under the
mortgage in favour of the 7th respondent, on the question of
priorities. The petitioner cannot have a preference over the 7th
respondent, while the 7th respondent may have a preference on
the basis of the mortgage. An attachment in the course of
revenue recovery proceedings on the strength of the notification
applying the Revenue Recovery Act for recovery of dues to the
petitioner does not convert that debt to be one that would
amount to a prior charge in its favour. There is no such operation
of law.
5. I heard learned counsel for the petitioner and the
learned counsel for the 7th respondent in relation to the amounts
involved.
6. Having regard to the totality of the facts and
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circumstances, while repelling the challenge of the petitioner, this
writ petition is disposed of issuing the following directions:
i) The sale proceedings may continue, however, showing
in the sale proclamation, the amounts that is due to the petitioner
also by noting such amount, on the basis of the petitioner’s
affidavit, that would be filed by the petitioner before the recovery
officer.
ii) The recovery officer would also make a public
announcement in the presence of any intending bidder regarding
the revenue recovery attachment which the petitioner has over
the property and minute such announcement in the proceedings
of the recovery officer.
iii) Following that, if the amounts generated from sale
exceeds the amount that is due to the 7th respondent, such
amount will be paid to the petitioner by the recovery officer on
the strength of this judgment.
iv) Petitioner is left with liberty to invoke all other
remedies as may be available in accordance with law, for
enforcing the recovery of dues.
THOTTATHIL.B.RADHAKRISHNAN
JUDGE
sv.
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