IN THE HIGH COURT OF KERALA AT ERNAKULAM
WA No. 340 of 2008()
1. RISHAD, S/O.T.A.MAJEED, C.C.13/761,
... Petitioner
Vs
1. MULLACKAL CONSTRUCTIONS, REPRESENTED
... Respondent
2. THE BRANCH MANAGER,
3. DEBT RECOVERY OFFICER DEBTS RECOVERY
4. GENERAL MANAGER, SOUTH INDIAN BANK,
5. T.A.MAJEED, C.C.NO.13/761, GREEN HOUSE,
For Petitioner :SRI.K.S.DILIP
For Respondent :SRI.K.K.JOHN,SC,SOUTH INDIAN BANK
The Hon'ble the Chief Justice MR.H.L.DATTU
The Hon'ble MR. Justice K.M.JOSEPH
Dated :28/03/2008
O R D E R
H.L. DATTU, C.J. & K.M. JOSEPH, J.
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WRIT APPEAL No.340 of 2008
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Dated this the 28th day of March, 2008.
JUDGMENT
H.L.DATTU, CJ.
At the outset we place on record our deep appreciation to the efforts
made by Sri.T.M.Abdul Latheef, learned counsel appearing for the contesting
respondent in this writ appeal, who has saved a family from being ruined.
2. The appellant before us was the fifth respondent in the writ petition
filed by Mullackal Constructions represented by its Managing Partner. Petitioner had
called in question Exts.P1 to P4 issued by the first respondent and secondly to
command the first respondent not to consider Exts.P9 and P10 petitions and further to
direct the Debts Recovery Tribunal to allot the said petitions for consideration by an
officer properly authorised under law, at any rate, by the Recovery Officer other than
the first respondent.
3. We need not have to go into the prayers made in the writ petition,
since the parties to the lis have amicably settled the dispute during the pendency of this
appeal.
4. Admittedly, the petitioner had committed default in paying the
amounts due to the respondent Bank. The Bank had initiated recovery proceedings
before the Debt Recovery Tribunal. The Recovery Officer attached to the Debt
Recovery Tribunal had initiated proceedings to sell the mortgaged property of the
petitioner for the default committed by him in repaying the amount due to the Bank.
Fifth respondent is the auction purchaser, and in fact a sale certificate has also been
issued by the Recovery Officer in favour of the fifth respondent.
5. The learned Single Judge by his order dated 20th of August, 2007 had
W.A. 340/2008. 2
directed the petitioner to pay the entire amount deposited by the fifth respondent
together with 8% interest thereof on or before 20.10.2007. The learned Judge had also
observed that if the petitioner advances payment by one month, petitioner needs to pay
only 6% interest. If payments are made as directed on or before 20.10.2007, the sale
will stand cancelled. Lastly, the learned Single Judge had directed the Recovery Officer
to make payments to the Bank without any delay after recovering cost, poundage fee
etc.
6. Aggrieved by the discretionary order passed by the learned Single
Judge, the fifth respondent, who is the auction purchaser of the property in question is
before us in this writ appeal.
7. When the matter had been posted before the court, we had granted
sometime to the petitioner/contesting respondent to comply with the orders and
directions issued by this court. Finally, on 25.3.2008 the contesting respondent has paid
a sum of Rs.30 Lakhs to the auction purchaser. The same is accepted by the auction
purchaser without any protest.
8. Now a statement is filed by the auction purchaser indicating that he
had spent nearly Rs.33,45,550/- for the purchase of the property that include stamp
duty, poundage fee etc. He has also stated that he had availed a loan from DHFL in the
month of December, 2007 and he is paying interest on the aforesaid loan amount.
9. In order to give a quietus to the entire litigation, we thought it fit to
direct the contesting respondent/writ petitioner to pay a further sum of Rupees Six
Lakhs apart from the amount already paid to the auction purchaser within a month’s
time from today. Sri. Abdul Latheef, learned counsel appearing for the contesting
respondent is agreeable to pay the aforesaid amount. Sri. K.S.Dilip, learned counsel
W.A. 340/2008. 3
appearing for the appellant/fifth respondent in the writ petition is agreeable to receive
the aforesaid amount.
10. In view of the above, the following:
Order
1) The first respondent shall pay a further sum of Rs.Six Lakhs to the
appellant within a month’s time from today.
2) The first respondent shall not seek any further extension of time.
3) After the entire amounts are paid as directed by us, the Recovery
Officer of the Debt Recovery Tribunal is directed to set aside the sale certificate.
4) If for any reason, the first respondent does not comply with the orders
and directions issued by this court, the Recovery Officer will take all effective steps to
hand over possession of the property in question to the appellant herein.
5) The contesting respondent is directed to work out all his remedies,
which are available to him in accordance with law with the Bank as well as with the
Recovery Officer.
11. With these observations, the writ appeal is disposed of.
Consequently, all pending I.As are closed.
Ordered accordingly.
H.L. DATTU,
CHIEF JUSTICE
K.M. JOSEPH,
JUDGE
sb/DK.