High Court Kerala High Court

V.C. Mohammed Koya Thangal vs State Bank Of India on 21 May, 2010

Kerala High Court
V.C. Mohammed Koya Thangal vs State Bank Of India on 21 May, 2010
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

WA.No. 630 of 2010()


1. V.C. MOHAMMED KOYA THANGAL,
                      ...  Petitioner

                        Vs



1. STATE BANK OF INDIA,
                       ...       Respondent

2. THE AUTHORISED OFFICER,

                For Petitioner  :SRI.C.M.MOHAMMED IQUABAL

                For Respondent  :SRI.GEORGE THOMAS(MEVADA), SC, SBI

The Hon'ble the Chief Justice MR.J.CHELAMESWAR
The Hon'ble MR. Justice P.N.RAVINDRAN

 Dated :21/05/2010

 O R D E R
              J.Chelameswar, C.J. & P.N.Ravindran, J.
                  ------------------------------------------
                          W.A.No.630 of 2010
                  ------------------------------------------
                Dated this the 21st day of May, 2010

                             JUDGMENT

J.Chelameswar, C.J.

This writ appeal is preferred by the unsuccessful

petitioner in W.P.(C) No.6224 of 2010-C dated 15th March, 2010.

2. The appellant herein availed a loan from the first

respondent Bank and failed to repay the instalments as agreed upon.

Consequentially steps were taken by the respondents for causing

sale of the mortgaged property under the provisions of the

Securitisation and Reconstruction of Financial Assets and

Enforcement of Security Interest Act, 2002.

3. The appellant had earlier approached this Court by

way of a writ petition which culminated ultimately in W.A.No.64 of

2009. By the said judgment the appellant was directed to repay the

amount outstanding to the Bank in certain instalments, details of

W.A.No.630 of 2010

– 2 –

which are not necessary for the present purpose. By the

judgment under appeal, the learned Judge recorded a finding

that the appellant could not even take advantage of the

abovementioned judgment in W.A.No.64 of 2009 and pay the

amount in accordance with the directions of this Court.

4. In the abovementioned background, the property

of the appellant was auctioned on 20th April, 2009 and the sale

was registered on 23rd December, 2009.

5. The instant writ petition was filed on 22nd

February, 2010 with two innocuous prayers which read as

follows:

“a) Issue a writ of mandamus or any other

appropriate writ, order or direction directing the

respondent bank to return the documents belonging to

the petitioner, which is deposited by the petitioner as a

security to the loan number 30050719410 availed by

him.

b) Issue a writ of mandamus or any other

appropriate writ, order or direction directing the

respondent bank to consider and pass appropriate

W.A.No.630 of 2010

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orders on Ext.P9 representation filed by the petitioner

before the bank.”

6. Apart from the various reasons assigned for

dismissing the writ petition, the learned Judge by the judgment

under appeal in paragraph 5 has recorded a finding that the

successful purchaser of the appellant’s property is not made a

party to the writ petition. The learned Judge recorded a further

finding that the explanation offered by the appellant for such

non-joinder of necessary party is not acceptable to the Court. It

appears from the records that the Bank had informed the

appellant by letter dated 10.7.2009 that the property which is the

subject matter of dispute in the instant proceedings was

auctioned on 20th April, 2009. By the said letter, the appellant

herein was given a further opportunity to make remittance of the

amount outstanding for a period of 15 days from the date of the

notice with a caution that the property would be registered in the

name of the successful bidder Mr.V.V.Paul without further

notice. Relevant portion of the said letter reads as follows:

W.A.No.630 of 2010

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“With reference to your above letter, kindly

refer to our letter No.RBO KKD:228-16-19 dated

08.05.2009. As you have not complied with the

orders of the Honourable High Court of Kerala,

Ernakulam, in the suit Nos.WP(C) No.37416/2008

and WA No.64/2009, the property mortgaged to us

was auctioned on 20.04.2009 and the property will be

registered in the name of the bidder very soon.

Hence, we cannot permit the time sought by you for

closing the account and if the entire amount is not

paid within 15 days of this notice the property will be

registered in the name of the bidder Mr.V.V.Paul,

without further notice.”

7. The said letter was in the custody of the appellant

on the date of filing of the writ petition. In fact, this letter was

produced as Ext.P7 in the writ petition. In the circumstances,

the explanation offered by the appellant that he was not aware of

either the sale or the information regarding the successful bidder

was rightly rejected by the learned Judge. We do not see any

reason to interfere with the judgment under appeal. On the other

hand, we are of the opinion that the instant litigation is a sheer

W.A.No.630 of 2010

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abuse of the process of the court. Therefore, it requires to be

dismissed with exemplary costs.

The writ appeal is, therefore, dismissed at the

admission stage with costs quantified to three thousand rupees.

J.Chelameswar,
Chief Justice

P.N.Ravindran,
Judge
vns