High Court Kerala High Court

Sri.K.J. Joseph vs State Bank Of Travancore on 27 August, 2008

Kerala High Court
Sri.K.J. Joseph vs State Bank Of Travancore on 27 August, 2008
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

WP(C).No. 25405 of 2008(Y)


1. SRI.K.J. JOSEPH, AGED 52,
                      ...  Petitioner

                        Vs



1. STATE BANK OF TRAVANCORE,
                       ...       Respondent

2. THE RECOVERY OFFICER,

                For Petitioner  :SRI.VARGHESE C.KURIAKOSE

                For Respondent  : No Appearance

The Hon'ble MR. Justice K.T.SANKARAN

 Dated :27/08/2008

 O R D E R
                                   K.T. SANKARAN, J.
                        ............................................................
                           W.P.(C) No. 25405 OF 2008
                        ...........................................................
                            Dated this the 27th August, 2008

                                     J U D G M E N T

The reliefs prayed for in the Writ Petition are the following:

“(i) Call for the records leading to Ext. P7 sale

proclamation, examine the same and direct the second

respondent to give permission to the petitioner either to

arrange a private sale or grant 6 months time to clear the

liability if necessary by issuing a writ of mandamus.

(ii) Issue appropriate directions to the debts recovery

tribunal to take up Ext.P8 application, consider the same

on merits and grant a reasonable time to the petitioner to

liquidate either by arranging a private sale or by other

modes.”

2. The petitioner is the sole respondent in O.A.No. 396 of 2002 on the

file of the Debt Recovery Tribunal, Ernakulam. The O.A. was filed by the first

respondent herein, the State Bank of Travancore. The Debt Recovery Tribunal

disposed of O.A.No. 396 of 2002 ex parte on 14.10.2003. The petitioner filed

I.A.No. 231 of 2004 before the Tribunal for setting aside the ex parte decree.

There was a delay of 66 days in filing the application to set aside the ex parte

order. The Tribunal dismissed the applications as per Exhibit P4 order dated

13.07.2004. The petitioner challenged Ext. P4 order in appeal before the Debt

Recovery Appellate Tribunal at Chennai. The Appellate Tribunal passed Exhibit

P5 order dated 07.04.2005 setting aside the order passed by the Debt

Recovery Tribunal, on condition that the petitioner pays 50% of Rs.12,16,736/-

W.P.(C) No. 25405 OF 2008
2

within two weeks from the date of the order. An opportunity was also afforded to

the petitioner to file a written statement on compliance of the conditions for

payment. It was clarified in Exhibit P5 order that in case of breach of any of the

conditions in the order, the appeal filed by the petitioner would stand dismissed

and the impugned order of the Debt Recovery Tribunal would stand restored.

Exhibit P5 order was passed in the background of the submission made by the

learned counsel appearing for the petitioner, which was recorded in Exhibit P5

order. The relevant portion of the order reads as follows:

“Having gone through the impugned order, in my view, there is

nothing wrong with the order at all and no fault can be found

with it and I was about to dismiss the appeal filed by the

appellant. But the appellant’s advocate submitted that he be

given a chance to pursue the case on merits and his client is

willing to deposit 50% of the decretal amount within two weeks

from today and he will file written statement on or before

30.4.2005. The other side is not seriously opposing.

Accordingly, following order is passed. “

3. The petitioner did not comply with the directions contained in Exhibit

P5 order. Proceedings were initiated for recovery of the amount. The recovery

officer issued Exhibit P7 Proclamation of Sale. As per Exhibit P7, an extent of

one acre of land is sought to be sold in public auction, fixing a reserve price at

Rs.18,00,000/- for recovery of a sum of Rs. 19,77,585.93/-. After the initiation of

the recovery proceedings, the petitioner filed Exhibit P6 Review Petition before

the Debt Recovery Appellate Tribunal, which was actually filed on 7th March,

2008 though dated 7th March, 2007. The petitioner filed Exhibit P8 application

W.P.(C) No. 25405 OF 2008
3

for adjournment of the sale before the Debt Recovery Tribunal and also filed

Exhibit P9 application before the Recovery Officer for adjournment of sale by six

months for the purpose of enabling the petitioner to arrange a private sale in

respect of 25 cents of land out of the property sought to be sold. Sale of a

portion of the land sought to be sold, according to the petitioner, would be

sufficient to meet the liability. No orders have been passed on Exhibits P8 and

P9 applications.

3. In the facts and circumstances of the case, I do not think that

permission can be granted to the petitioner to arrange for a private sale of the

land sought to be sold. At the same time, in the interest of justice, it is necessary

to decide the question whether the sale of a portion of the property would be

sufficient to satisfy the decree debt. The fact that a reserve price is fixed by the

recovery officer would not preclude the recovery officer to consider the question

as to whether the sale of a portion of the property would be sufficient to satisfy

the decree debt, in spite of the fact that the reserve price was fixed on a

valuation made at the instance of the recovery officer. The recovery officer

would also consider the question as to whether the sale of the property could be

had in lots, so that the petitioner would be able to salvage at least a portion of

the property. It does not appear that the recovery officer has applied his mind to

these aspects. It is trite that in a court auction sale, it is the duty of the court to

ascertain whether it is necessary to sell the whole extent of the land sought to

be sold or whether it is sufficient to order sale of a portion of the property in

W.P.(C) No. 25405 OF 2008
4

order to satisfy the decree debt. The same principle would apply in the case of a

sale by the recovery officer as well.

In the facts and circumstances of the case, the Writ Petition is disposed of

with the following directions.

i) The recovery officer shall consider Exhibit P9 only to the limited extent

of ascertaining whether the sale of the whole property is necessary to recover

the amount due from the petitioner, for realisation of which, the property is

sought to be sold.

ii) On ascertaining the same, if the recovery officer finds that it is

sufficient if a portion of the property is sold, necessary proclamation shall be

issued to carry out such decision.

iii) The recovery officer shall also consider the question as to whether the

sale of the property can be had in lots.

iv) The petitioner shall submit all the necessary facts before the recovery

officer in support of his contention within a period of three weeks from today.

v) The recovery officer need not afford an opportunity of being heard to

the petitioner since the petitioner waives any such right to enable him to get the

relief sought for in the Writ Petition which otherwise as of a right he may not be

entitled to.

K.T. SANKARAN,
JUDGE.

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