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