{"id":201142,"date":"2009-07-27T00:00:00","date_gmt":"2009-07-26T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/t-mani-vs-the-kerala-financial-corporation-on-27-july-2009"},"modified":"2014-06-22T23:35:23","modified_gmt":"2014-06-22T18:05:23","slug":"t-mani-vs-the-kerala-financial-corporation-on-27-july-2009","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/t-mani-vs-the-kerala-financial-corporation-on-27-july-2009","title":{"rendered":"T.Mani vs The Kerala Financial Corporation on 27 July, 2009"},"content":{"rendered":"
Kerala High Court<\/div>\n
T.Mani vs The Kerala Financial Corporation on 27 July, 2009<\/div>\n
       \n\n  \n\n  \n\n \n \n  IN THE HIGH COURT OF KERALA AT ERNAKULAM\n\nWP(C).No. 2700 of 2007(U)\n\n\n1. T.MANI, S\/O.SREEDHARAN,\n                      ...  Petitioner\n2. ABDUL HAKEEM, S\/O.ALAVI,\n\n                        Vs\n\n\n\n1. THE KERALA FINANCIAL CORPORATION\n                       ...       Respondent\n\n2. K.T.CHANDUKUTTY,\n\n3. THE GOVERNMENT OF KERALA,\n\n4. THE SUB REGISTRAR,\n\n                For Petitioner  :SRI.T.KRISHNAN UNNI (SR.)\n\n                For Respondent  :SRI.BOBY MATHEW\n\nThe Hon'ble MR. Justice S.SIRI JAGAN\n\n Dated :27\/07\/2009\n\n O R D E R\n                          S. SIRI JAGAN, J\n                ...............................................\n                    W.P(C)No. 2700 of 2007\n               .................................................\n            Dated this the 27th day of July, 2009\n\n                          J U D G M E N T\n<\/pre>\n
     Petitioners are borrowers of loan amounts from the Kerala<\/p>\n
Financial Corporation, the 1st respondent herein.                Petitioners<\/p>\n
defaulted repayment of the loan amounts. The KFC initiated<\/p>\n
recovery proceedings. Petitioners were afforded one time<\/p>\n
settlement facility to pay off the entire amounts by Ext.P3. As<\/p>\n
per Ext.P3, the petitioners were to pay an amount of Rs.25 lakhs<\/p>\n
with belated interest and RR charges on or before 30.6.2005.<\/p>\n
The petitioners did not avail of that opportunity to settle the loan<\/p>\n
account. In the meanwhile, the KFC initiated and completed<\/p>\n
proceedings for sale of the mortgaged properties which was<\/p>\n
purchased by the 2nd respondent herein. Petitioners challenged<\/p>\n
the sale in W.P(C) No. 34808\/05. By Ext.P4 judgment, this court<\/p>\n
disposed of the writ petition by the following judgment:<\/p>\n
            “Heard counsel for the petitioner and Standing
\n       Counsel for KFC.      Even though petitioner was granted
\n       OTS benefit for settlement at a reasonable amount of
\n       Rs.25.50 lakhs in the year 2002, the petitioner did not
\n       make payment and consequently forfeited the benefit. On
\n       account of chronic default the property is now proposed to
\n       be sold and the highest offer is said to be Rs.66.5 lakhs.<\/p>\n
W.P(C)No. 2700 of 2007            -2-<\/span><\/p>\n
      Standing Counsel for the KFC submitted that the higher
\n      price offered is more than the upset price and is sufficient
\n      to absorb most of the loan amount because the
\n      outstanding     as   on   30.6.2005       is  Rs.69,62,000\/-.
\n      Considering the request of the petitioner, I feel one more
\n      opportunity can be granted but without cancelling the
\n      present offer received against tender notified by the KFC.
\n      The W.P. is therefore disposed of directing the respondent
\n      to inform the highest bidder that if he is interested, he
\n      should wait till 1.3.2006 without any conditions and
\n      without collecting any further amount from him.          The
\n      petitioner is given time to settle liability even by entering
\n      into agreement for sale of the mortgaged property till
\n      28.2.2006. If liability is not settled by the petitioner by
\n      28.2.2006, the Corporation will sell the property to the
\n      highest bidder who has made offer now if he is still
\n      interested to purchase the property.         However, if the
\n      highest offerer backs out, the Corporation will after
\n      28.2.2006 proceed for sale of the property if petitioner
\n      does not settle liability by then. The respondent is also
\n      directed to grant OTS benefit to the petitioner but with
\n      reference to the current liability based on current norms
\n      treating   the  previous   OTS    as cancelled,     provided
\n      petitioner makes full payment under the said OTS before
\n      28.2.2006.”<\/p><\/blockquote>\n
     2. That judgment was challenged by the petitioner in a writ<\/p>\n
appeal before the Division Bench and in an SLP before the<\/p>\n
Supreme Court in which the Supreme Court ultimately upheld<\/p>\n
the sale in favour of the 2nd respondent.            Again, petitioners<\/p>\n
approached this court by filing W.P(C) No. 10189\/06. In that<\/p>\n
writ petition I passed Ext.P6 judgment which reads as follows:<\/p>\n
            “A defaulter in repayment of loan amounts to Kerala
\n      Financial Corporation, has come up with this writ petition
\n      challenging the sale proceedings initiated by the KFC for
\n      sale of the mortgaged properties for realisation of the
\n      balance amount due under the loan account. The present
\n      contention of the petitioner is that he is prepared to pay<\/p>\n
W.P(C)No. 2700 of 2007                -3-<\/span><\/p>\n
      the entire amounts due within a short time and the sale
\n      may be kept in abeyance.\n<\/p><\/blockquote>\n
             2. The learned standing counsel for the KFC submits
\n      that the sale was long over and the property was
\n      purchased by the 3rd respondent by paying the entire
\n      amounts and the sale has been confirmed. The only thing
\n      now remains to be done is to execute the formal sale deed.
\n      The 3rd respondent also strongly opposes the claim of the
\n      petitioner.\n<\/p><\/blockquote>\n
             3. I have considered the rival arguments in detail.
\n      The petitioner has raised a claim of equity. According to
\n      him, the property worth Rs.1 crore or more, is knocked
\n      down for only Rs.66,50,000\/-. However, he could not point
\n      out any material irregularity in the same. In the absence of
\n      any material irregularity in the sale itself, I cannot interfere
\n      with the same, especially since a third party has obtained
\n      valuable rights in respect of the properties paying the
\n      entire sale price. Further, I find that the petitioner had
\n      sufficient opportunity to redeem the mortgage. In fact, by
\n      Ext.P5 judgment, this Court granted another opportunity to
\n      the petitioner to pay the amount without cancelling the
\n      present offer received against tender notified by the KFC.
\n      This Court disposed of the said writ petition as follows:\n<\/p><\/blockquote>\n
                         “……. The W.P. is therefore disposed of
\n           directing the respondent to inform the highest bidder
\n           that if he is interested, he should wait till 1.3.2006
\n           without any conditions and without collecting any
\n           further amount from him. The petitioner is given time
\n           to settle liability even by entering into agreement for
\n           sale of the mortgaged property till 28.2.2006. If
\n           liability is not settled by the petitioner by 28.2.2006,
\n           the Corporation will sell the property to the highest
\n           bidder who has made offer now if he is still interested
\n           to purchase the property. However, if the highest
\n           offerer    backs    out,  the  Corporation   will  after
\n           28.2.2006 proceed for sale of the property if
\n           petitioner does not settle liability by then.       The
\n           respondent is also directed to grant OTS benefit to
\n           the petitioner but with reference to the current
\n           liability based on current norms treating the previous
\n           OTS as cancelled, provided petitioner makes full
\n           payment under the said OTS before 28.2.2006.”<\/p><\/blockquote>\n<\/blockquote>\n
             4. The petitioner could not avail of that opportunity<\/p>\n
W.P(C)No. 2700 of 2007              -4-<\/span><\/p>\n
      also. In the above circumstances, I am of opinion that the
\n      petitioner is not entitled to even equitable consideration to
\n      seek another opportunity to pay the same overlooking the
\n      third party rights of the 3rd respondent, who has parted
\n      with quite a large sum of money in proceedings against
\n      which the petitioner could not point out any irregularity
\n      whatsoever. Therefore, I do not find any merit in this writ
\n      petition and accordingly, the same is dismissed.”<\/p><\/blockquote>\n
      3. Subsequently, the KFC confirmed the sale in favour of<\/p>\n
the 2nd respondent. It is thereafter, the petitioner has filed this<\/p>\n
writ petition again challenging the confirmation of the sale in<\/p>\n
favour of the 2nd respondent, on the ground that the sale is<\/p>\n
vitiated by fraud. In this writ petition the 2nd respondent filed<\/p>\n
I.A. No. 5110 of 2007 complaining that the KFC is not executing<\/p>\n
the sale deed in their favour. In that I.A., I passed the following<\/p>\n
order on 4.4.2007.\n<\/p>\n
             ” This is an application filed by the second respondent
\n       in the O.P. who is the purchaser of the mortgaged property
\n       sold by the Kerala Financial Corporation for realisation of
\n       the loan amounts secured by the said mortgage.            The
\n       validity of the sale was the subject matter of challenge
\n       before this Court in which I had upheld the sale in favour of
\n       the second respondent. A Division Bench of this Court in
\n       Writ Appeal No. 1546\/2006 confirmed that judgment.
\n       Thereafter this writ petition has been filed by the
\n       petitioners alleging fraud in the same. In this writ petition,
\n       there was originally an interim order dated 23.1.2007
\n       where the Sub Registrar, West Hill, Kozhikode was directed
\n       not to register the sale certificate granted to the second
\n       respondent in pursuance of Ext.P5 sale. The matter was
\n       again taken up for extension of stay and by Ext.R2(i) order
\n       dated 26.2.2007, a learned Single Judge directed the
\n       petitioners to deposit the amount covered by the order
\n       dated 23.1.2007 in a nationalised bank to accrue the
\n       maximum possible interest within one week.                The<\/p>\n
W.P(C)No. 2700 of 2007              -5-<\/span><\/p>\n
      petitioners moved the learned Single Judge for modification
\n      of the said order and by order dated 28.3.2007, the learned
\n      Judge refused to modify that order. As such, it is clear that
\n      the petitioners had not proved their bonafides by complying
\n      with the directions of the learned Single Judge. It is under
\n      the above circumstances that the second respondent has
\n      filed this I.A. seeking a direction to respondents 3 and 4 to
\n      complete the execution and registration of Ext.R2(a) sale
\n      deed within a stipulated time to be fixed by this Court.\n<\/p><\/blockquote>\n
             2. The learned counsel for the petitioners in the writ
\n      petition would vehementally argue that in spite of the
\n      earlier judgments of this Court, the petitioner is not entitled
\n      to reliefs because of fraud in conducting the same. The
\n      learned counsel for the KFC submits that they are unable to
\n      execute the sale deed and get the same registered only
\n      because of the order dated 26\/2\/2007 in which the interim
\n      order has been extended until further orders.\n<\/p><\/blockquote>\n
             3. I am, prima facie, of the opinion that when this
\n      Court and the Supreme Court had confirmed the sale in
\n      favour of the second respondent who is the petitioner in the
\n      I.A. and when the petitioners have not proved their
\n      bonafides by complying with the directions of this Court by
\n      depositing the amount in a nationalised bank accruing
\n      interest, it would be improper on the part of this Court to
\n      ask the petitioner herein to wait further pursuant to the
\n      sale confirmed in his favour. In the above circumstances, I
\n      direct respondents 3 and 4 to complete the execution and
\n      registration of Ext.R2(e) sale deed within one month from
\n      today. This would be subject to final orders in the writ
\n      petition.”<\/p><\/blockquote>\n
     4.   Even, prior to that, this court had passed another<\/p>\n
interim order dated 26.2.2007 as follows:\n<\/p>\n
             “Learned    counsel for the petitioners submits that
\n      following the interim order dated 23.01.07, 2nd petitioner is
\n      permitted to deposit the entire amount.           The learned
\n      counsel for the contesting respondent submits that sale has
\n      been confirmed and document has to be executed. The plea
\n      of the writ petitioners is that there is fraud in the matter of
\n      conducting sale under Section 29 of the SARFEASI Act. No
\n      alternate and effective remedy is available under the
\n      SARFEASI Act or otherwise. Accordingly, he has to work
\n      out his remedies in this writ petition. To show the<\/p>\n
W.P(C)No. 2700 of 2007            -6-<\/span><\/p>\n
      bonafides, the petitioners will ensure that the amount
\n      covered by order dated 23.01.07 is deposited in a
\n      nationalised bank to accrue the maximum possible interest,
\n      within a period of one week.\n<\/p><\/blockquote>\n
            Interim order will stand extended until further
\n      orders.\n<\/p><\/blockquote>\n
            List this writ petition, in the usual course, for
\n      hearing.”\n<\/p><\/blockquote>\n
That also the petitioner had not complied with.<\/p>\n
      5. The petitioner now contends that the property is worth<\/p>\n
more than Rs.1 crore, as is evident from Ext.P1 valuation report.<\/p>\n
The said property has been knocked down for Rs.66.5 lakhs,<\/p>\n
which according to the petitioner is the result of collusion<\/p>\n
between the KFC and 2nd respondent. The contention is that<\/p>\n
although the Supreme Court had upheld the sale in favour of the<\/p>\n
2nd respondent, that does not operate as res judicata for the<\/p>\n
petitioner to challenge the sale on the ground of fraud.<\/p>\n
      6. I have considered the rival contentions in detail.<\/p>\n
      7. All throughout, the petitioner has been challenging the<\/p>\n
sale on one ground or other. It was perfectly open to them to<\/p>\n
challenge the sale on the ground of fraud also. They did not.<\/p>\n
Of course they would contend that the fraud was found out<\/p>\n
subsequently which contention lacks conviction.          In fact in<\/p>\n
Ext.P6 judgment which was not challenged by the petitioner, the<\/p>\n
very same contention regarding under sale did not find favour<\/p>\n
W.P(C)No. 2700 of 2007           -7-<\/span><\/p>\n
with me. Now also the sale is challenged on the same ground<\/p>\n
that property worth over Rs.1 crore is sold for Rs.66.5 lakhs. It<\/p>\n
is common knowledge that a distress sale would not fetch the<\/p>\n
market value of a property. I have already held in that judgment<\/p>\n
that the petitioners could not point out any material irregularity<\/p>\n
in the sale. Now the same contention is raised with the epithet<\/p>\n
that it amounts to fraud, without any material to substantiate the<\/p>\n
same. If such litigation is permitted there would not be any end<\/p>\n
to the litigation.\n<\/p>\n
      8. Therefore I am of opinion that even if the petitioner<\/p>\n
wants to challenge the sale further on the ground of fraud it can<\/p>\n
only be by way of a review petition before the Supreme Court.<\/p>\n
In any event I am not satisfied that the petitioners can again rack<\/p>\n
up the very same issue the decision on which has already<\/p>\n
acquired finality by the Judgment of the Supreme Court.<\/p>\n
      In the above circumstances, I do not find any merit in the<\/p>\n
writ petition and accordingly the same is dismissed.<\/p>\n
                                       S. SIRI JAGAN, JUDGE
\nrhs<\/p>\n","protected":false},"excerpt":{"rendered":"
Kerala High Court T.Mani vs The Kerala Financial Corporation on 27 July, 2009 IN THE HIGH COURT OF KERALA AT ERNAKULAM WP(C).No. 2700 of 2007(U) 1. T.MANI, S\/O.SREEDHARAN, … Petitioner 2. ABDUL HAKEEM, S\/O.ALAVI, Vs 1. THE KERALA FINANCIAL CORPORATION … Respondent 2. K.T.CHANDUKUTTY, 3. THE GOVERNMENT OF KERALA, 4. THE SUB REGISTRAR, For Petitioner […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,21],"tags":[],"class_list":["post-201142","post","type-post","status-publish","format-standard","hentry","category-high-court","category-kerala-high-court"],"yoast_head":"\nT.Mani vs The Kerala Financial Corporation on 27 July, 2009 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/t-mani-vs-the-kerala-financial-corporation-on-27-july-2009\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"T.Mani vs The Kerala Financial Corporation on 27 July, 2009 - 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