High Court Kerala High Court

M.P. Khadeeja vs State Bank Of India on 2 June, 2009

Kerala High Court
M.P. Khadeeja vs State Bank Of India on 2 June, 2009
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

WP(C).No. 15152 of 2009(O)


1. M.P. KHADEEJA, AGED 34 YEARS,
                      ...  Petitioner
2. K.M. MONU @ PALLIKKUNHI,

                        Vs



1. STATE BANK OF INDIA,
                       ...       Respondent

2. M/S. MOIDEEN LUMBERRA, PROPRIETORY

3. K.I.M MONU, AGED 47 YEARS,

4. MAHABAL SHETTY, AGED 40 YEARS,

5. THE DIRECTOR,

                For Petitioner  :SRI.A.F.SEBASTIAN

                For Respondent  : No Appearance

The Hon'ble MR. Justice S.S.SATHEESACHANDRAN

 Dated :02/06/2009

 O R D E R
                     S.S. SATHEESACHANDRAN, J.
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                        W.P.(C) No.15152 of 2009
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                           Dated: 2nd June, 2009

                                 JUDGMENT

The Writ Petition is filed under Article 227 of the Constitution of

India seeking the following reliefs:

1. Call for the records in E.A.No.240/08 in E.P.No.7/06 on the files of

the Hon’ble Sub Court, Kasargod and set aside the order dated

11.2.2009 in E.A.No.240/08 in E.P.No.7/06 on the files of the Sub

Court, Kasaragod.

2. To issue appropriate directions to the lower court for rectifying the

irregularities in fixing the reserve price of the mortgaged

properties/petition schedule properties including the direction to fix

the reserve price of the petition schedule property at not less than

Rs.48 lakhs (i.e. the valuation fixed by the 1st respondent bank on the

mortgaged property at the time of sanctioning the loan).

3. To direct the 1st respondent to settle the loan account in terms of

the earlier One Time Settlement and in terms of the Ext.P5

representation.

4. Direct the lower court to refer the matter to the adalat for further

negotiation and settlement of the liability in case, this Hon’ble Court

is not inclined to allow the prayer No.3.

W.P.C.No.15152/09 – 2 –

5. Grant such other reliefs which this Hon’ble Court thinks fit in the

facts and circumstances of this case.

First and also the 5th respondent have entered appearance through

counsel.

2. Petitioners are the judgment debtors 2 and 4 in E.P.No.7/06

in O.S.No.13/02 on the file of the Sub Court, Kasaragod. Admittedly,

petitioners have approached this court earlier and moved a Writ

Petition challenging the upset price fixed by the court as regards their

property which is brought to sale. Sale proclamation was settled

fixing a price of Rs.14 lakhs and as there were no bidders when the

property was auctioned, the amount was reduced to Rs.13.5 lakhs by

the court. Questioning the reduction so made by the court, petitioners

preferred the Writ Petition earlier and that was dismissed as meritless

by Ext.P2 judgment. Again, the petitioners moved another application

before the execution court contending that the market value of the

property is much more than the upset price fixed by the court and

even at the time when the bank had taken the property as mortgage

towards the security of the loan, the valuation of the bank indicated it

was at 48 lakhs. Such valuation, according to the learned counsel,

was made in the year 2001. Whatever be the merit of the submission

W.P.C.No.15152/09 – 3 –

made by the learned counsel, it need not be stated that once the

proclamation is settled, the judgment-debtor has no right to contend

that the upset price for the property is much more and that sum has

to be fixed for sale. Such an objection has to be raised at the stage

before the settlement of the proclamation for sale and naturally under

the present rule that amount has also to be shown in the

proclamation. That course having been followed and in the light of

the dismissal of the earlier Writ Petition under Ext.P2 judgment, I find

no merit in the present petition filed questioning the upset price fixed

for sale. The Writ Petition is dismissed.

srd                            S.S. SATHEESACHANDRAN, JUDGE