IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 25405 of 2008(Y)
1. SRI.K.J. JOSEPH, AGED 52,
... Petitioner
Vs
1. STATE BANK OF TRAVANCORE,
... Respondent
2. THE RECOVERY OFFICER,
For Petitioner :SRI.VARGHESE C.KURIAKOSE
For Respondent : No Appearance
The Hon'ble MR. Justice K.T.SANKARAN
Dated :27/08/2008
O R D E R
K.T. SANKARAN, J.
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W.P.(C) No. 25405 OF 2008
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Dated this the 27th August, 2008
J U D G M E N T
The reliefs prayed for in the Writ Petition are the following:
“(i) Call for the records leading to Ext. P7 sale
proclamation, examine the same and direct the second
respondent to give permission to the petitioner either to
arrange a private sale or grant 6 months time to clear the
liability if necessary by issuing a writ of mandamus.
(ii) Issue appropriate directions to the debts recovery
tribunal to take up Ext.P8 application, consider the same
on merits and grant a reasonable time to the petitioner to
liquidate either by arranging a private sale or by other
modes.”
2. The petitioner is the sole respondent in O.A.No. 396 of 2002 on the
file of the Debt Recovery Tribunal, Ernakulam. The O.A. was filed by the first
respondent herein, the State Bank of Travancore. The Debt Recovery Tribunal
disposed of O.A.No. 396 of 2002 ex parte on 14.10.2003. The petitioner filed
I.A.No. 231 of 2004 before the Tribunal for setting aside the ex parte decree.
There was a delay of 66 days in filing the application to set aside the ex parte
order. The Tribunal dismissed the applications as per Exhibit P4 order dated
13.07.2004. The petitioner challenged Ext. P4 order in appeal before the Debt
Recovery Appellate Tribunal at Chennai. The Appellate Tribunal passed Exhibit
P5 order dated 07.04.2005 setting aside the order passed by the Debt
Recovery Tribunal, on condition that the petitioner pays 50% of Rs.12,16,736/-
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within two weeks from the date of the order. An opportunity was also afforded to
the petitioner to file a written statement on compliance of the conditions for
payment. It was clarified in Exhibit P5 order that in case of breach of any of the
conditions in the order, the appeal filed by the petitioner would stand dismissed
and the impugned order of the Debt Recovery Tribunal would stand restored.
Exhibit P5 order was passed in the background of the submission made by the
learned counsel appearing for the petitioner, which was recorded in Exhibit P5
order. The relevant portion of the order reads as follows:
“Having gone through the impugned order, in my view, there is
nothing wrong with the order at all and no fault can be found
with it and I was about to dismiss the appeal filed by the
appellant. But the appellant’s advocate submitted that he be
given a chance to pursue the case on merits and his client is
willing to deposit 50% of the decretal amount within two weeks
from today and he will file written statement on or before
30.4.2005. The other side is not seriously opposing.
Accordingly, following order is passed. “
3. The petitioner did not comply with the directions contained in Exhibit
P5 order. Proceedings were initiated for recovery of the amount. The recovery
officer issued Exhibit P7 Proclamation of Sale. As per Exhibit P7, an extent of
one acre of land is sought to be sold in public auction, fixing a reserve price at
Rs.18,00,000/- for recovery of a sum of Rs. 19,77,585.93/-. After the initiation of
the recovery proceedings, the petitioner filed Exhibit P6 Review Petition before
the Debt Recovery Appellate Tribunal, which was actually filed on 7th March,
2008 though dated 7th March, 2007. The petitioner filed Exhibit P8 application
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for adjournment of the sale before the Debt Recovery Tribunal and also filed
Exhibit P9 application before the Recovery Officer for adjournment of sale by six
months for the purpose of enabling the petitioner to arrange a private sale in
respect of 25 cents of land out of the property sought to be sold. Sale of a
portion of the land sought to be sold, according to the petitioner, would be
sufficient to meet the liability. No orders have been passed on Exhibits P8 and
P9 applications.
3. In the facts and circumstances of the case, I do not think that
permission can be granted to the petitioner to arrange for a private sale of the
land sought to be sold. At the same time, in the interest of justice, it is necessary
to decide the question whether the sale of a portion of the property would be
sufficient to satisfy the decree debt. The fact that a reserve price is fixed by the
recovery officer would not preclude the recovery officer to consider the question
as to whether the sale of a portion of the property would be sufficient to satisfy
the decree debt, in spite of the fact that the reserve price was fixed on a
valuation made at the instance of the recovery officer. The recovery officer
would also consider the question as to whether the sale of the property could be
had in lots, so that the petitioner would be able to salvage at least a portion of
the property. It does not appear that the recovery officer has applied his mind to
these aspects. It is trite that in a court auction sale, it is the duty of the court to
ascertain whether it is necessary to sell the whole extent of the land sought to
be sold or whether it is sufficient to order sale of a portion of the property in
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order to satisfy the decree debt. The same principle would apply in the case of a
sale by the recovery officer as well.
In the facts and circumstances of the case, the Writ Petition is disposed of
with the following directions.
i) The recovery officer shall consider Exhibit P9 only to the limited extent
of ascertaining whether the sale of the whole property is necessary to recover
the amount due from the petitioner, for realisation of which, the property is
sought to be sold.
ii) On ascertaining the same, if the recovery officer finds that it is
sufficient if a portion of the property is sold, necessary proclamation shall be
issued to carry out such decision.
iii) The recovery officer shall also consider the question as to whether the
sale of the property can be had in lots.
iv) The petitioner shall submit all the necessary facts before the recovery
officer in support of his contention within a period of three weeks from today.
v) The recovery officer need not afford an opportunity of being heard to
the petitioner since the petitioner waives any such right to enable him to get the
relief sought for in the Writ Petition which otherwise as of a right he may not be
entitled to.
K.T. SANKARAN,
JUDGE.
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