IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 24276 of 2008(M)
1. RAJAGOPAL B.PAI
... Petitioner
2. ANUGRAHA CHARITABLE TRUST
3. INDIAN BANK , BRANCH OFFICE
4. A.N.BHAT, S/O.LATE NARAYANA BHAT
5. ANITHA BHAT, W/O.A.N.BHAT, CC.VIII/761,
6. N.M.BHAT, S/O.LATE NARAYANA BHAT
Vs
1. RECOVERY OFFICER & ORS
... Respondent
For Petitioner :SRI.BOBY MATHEW
For Respondent : No Appearance
The Hon'ble MR. Justice THOTTATHIL B.RADHAKRISHNAN
Dated :18/08/2008
O R D E R
THOTTATHIL B.RADHAKRISHNAN, J.
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W.P(C).No.24276 OF 2008
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Dated this the 18th day of August, 2008
JUDGMENT
The petitioner states that he is an absentee co-owner of
an item of property, which is proceeded against under the
provisions of the Recovery of Debts due to Banks & Financial
Institutions Act and that the recovery officer is likely to
dispossess the petitioner without deciding on a claim petition
filed by him. All that he could aspire to protect is only the
constructive possession which he claims as an absentee co-
owner. It is also a matter of record that the petitioner has filed a
suit as O.S.No.87/08 before the Sub Court, Kochi, arraying
different respondents, including the creditor Bank and the
auction purchaser, Anugraha Charitable Trust, as defendants.
2. The history of the proceedings under the RDB Act is that
the property was offered as mortgage to create a security
interest in favour of the creditor Bank for a loan transaction.
That facility was not repaid and a recovery order under the Act
WPC.24276/08
Page numbers
followed. This led to sale proceedings and the second
respondent herein, a charitable trust, purchased that item of
property. The litigations were carried to this Court, by the
judgment debtors under that recovery certificate, on various
counts. Those contentions were repelled and the right of the
trust to have the property was upheld. Before the Division
Bench, in a writ appeal against that judgment, the trust had
extended certain measures essentially by way of charity. The
judgment debtors, after obtaining such a concession before the
Division Bench, did not even abide by that. Instead, what sprung
was the claim petition of the petitioner herein, supported by
Ext.P2 suit filed by him earlier. Going by his case, the petitioner
resides in Bangalore and his interest over the property in
question, even according to him, is only a fractional right on the
basis of a Will he propounds and also certain other transactions.
I am not going into either the quantity or the quality of the claim
of the petitioner for the very simple reason that the recovery
officer is empowered to consider the claim petition and that a
civil suit is pending between the parties before the Sub Court,
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Kochi. But, I am clear in my mind that the proceedings as
aforesaid, by themselves, are insufficient for this Court to fork
the flow of the proceedings under the RDB Act, having regard to
the objects sought to be achieved by that enactment. This is all
the more so because the restitutional jurisdiction available to a
delivering authority would always be there with the recovery
officer or with the civil court as the case may be. Under such
circumstances, all that is required is for the recovery officer to
expedite consideration of the claim petition filed by the
petitioner on its merits and untrammelled by anything stated in
this judgment. Subject to the aforesaid, this writ petition is
dismissed.
Sd/-
THOTTATHIL B.RADHAKRISHNAN,
Judge
kkb.18/8.