JOMOL v. BANK OF BARODA (ERSTWHILE VIJAYA BANK)
Case at a glance
Outcome
Disposed of
In the facts of the case, the writ petition is disposed of
Provisions considered
Key paragraphs
- Para 88. It is evident that the shared house of the petitioner is now owned by the 2nd respondent. The 2nd respondent has availed financial assistance from the 1st respondent-Bank mortgaging the said property. When repayment was defaulted, the 1st respondent-Bank has initiated securitisation proceedings. Section…
Judgment
BANK OF BARODA ( ERSTWHILE VIJAYA BANK ) CHERTHALA BRANCH , REPRESENTED BY ITS AUTHORISED OFFICER/CHIEF MANAGER . CMC-3,483-C,FIRST FLOOR,CHERTHALA ROAD, NEAR IRON BRIDGE, CHERTHALA P.O., ALAPUZHA DIST, PIN – 688524. SANTHA ROSLIN W/O., MAVELI JOSEPH MATHEW , 13/339, MAVELI HOUSE THAIKATTUSSERY P.O., THAIKATTUSSERY VILLAGE.CHERTHALA TALUK, ALAPUZHA DISTRICT. PIN- 688 528 NOW AT P.B.NO.177,AL-SAHA SAADHA HEALTH CENTRE, SALALAH-211, SULTHANATE OF MAN., PIN – 688528. MAVELI JOSEPH MATHEW S/O.LATE.JOSEPH, 13/339,MAVELI HOUSE THAIKATTUSSERY P.O., THAIKATTUSSERY VILLAGE.CHERTHALA TALUK, ALAPUZHA PIN- 688 528 NOW AT P.B.NO.177,AL-SAHA SAADHA HEALTH CENTRE,SALALAH-211, SULTHANATE OF MAN., PIN – 688528. W.P.(C)No.1042 of 2024 :2: 4 ANIL JOSEPH S/O., LATE. JOSEPH MAVELI VEEDU, THAIKATTUSSERY P.O., THAIKATTUSSERY VILLAGE. CHERTHALA TALUK, ALAPUZHA DISTRICT MOB:9847044879, 9287593307, PIN – 688528. BY ADV.SRI.ANEESH K.M THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 10.01.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C)No.1042 of 2024 :3: J U D G M E N T Dated this the 10th day of January, 2024 The petitioner states that the marriage between the petitioner and the 4th respondent was an arranged marriage held on 23.02.2002. Towards the share of the petitioner, her parents had entrusted 70 sovereigns of gold and ₹6 lakhs to the 4th respondent. The 4th respondent after marriage, misappropriated the gold and the amount paid by the petitioner's father.
The shared household is having 16.19 Ares of extent and in the meanwhile, the 4th respondent transferred the property to the 2nd respondent in the year 2015 and the 2nd respondent in turn mortgaged the property to the 1st respondent- Bank of Baroda. The entire action is collusive.
The petitioner states that the Judicial First Class Magistrate's Court-II, Cherthala in C.M.P. No.1901 of 2021 in M.C.No.19 of 2021 has passed an order restraining the W.P.(C)No.1042 of 2024 :4: respondents from dispossessing the petitioner from the residence. It is to overcome the Court order that the collusive action has been resorted to by respondents 2 to 4 and the property is being taken over.
Counsel for the petitioner submitted that the petitioner has a right of residence in the property in view of Ext.P5. The Bank has obtained orders under Section 14 without disclosing the possession of the residential building by the petitioner and the right of the petitioner to reside in the residential property.
The Advocate Commissioner has issued Ext.P7 notice in the name of respondents 2 and 3. Unless Ext.P7 is set aside, the petitioner will be thrown to street.
Standing Counsel entered appearance and resisted the writ petition on behalf of the 1st respondent. On behalf of the 1st respondent, it is submitted that the writ petition itself is collusive in nature. The petitioner and respondents 2 and 3 are close relatives. The 2nd respondent in whose name the property W.P.(C)No.1042 of 2024 :5: stands, has mortgaged the property to the Bank as a security for discharging her liability. When the 2nd respondent defaulted in repaying the amount, the Bank has resorted to the provisions of the SARFAESI Act, 2002. The petitioner, merely because of her alleged right of residence under the order of the Magistrate, cannot have superior right over the property, as the Bank is a secured creditor.
I have heard the learned Counsel for the petitioner and the learned Standing Counsel representing the Bank.
Operative part
It is evident that the shared house of the petitioner is now owned by the 2nd respondent. The 2nd respondent has availed financial assistance from the 1st respondent-Bank mortgaging the said property. When repayment was defaulted, the 1st respondent-Bank has initiated securitisation proceedings. Section 14 has been resorted to by the Bank. Ext.P7 notice is issued by the Advocate Commissioner. Ext.P7 notice has been issued in the name of respondents 2 and 3. It is not clear W.P.(C)No.1042 of 2024 :6: whether the Judicial First Class Magistrate's Court-II was appraised of the possession of the residential building by the petitioner. However, taking into consideration the fact that Ext.P7 is as a result of Bank invoking the provisions of the SARFAESI Act, the right royal remedy available to the petitioner is to approach the Debts Recovery Tribunal for redressal of her grievances, if any. In the facts of the case, the writ petition is disposed of without granting the relief prayed for by the petitioner, but, at the same time, permitting the petitioner to approach the Debts Recovery Tribunal concerned for appropriate reliefs.
Any coercive proceedings pursuant to Ext.P7 shall stand deferred for a period of three weeks to enable the petitioner to approach the Debts Recovery Tribunal. JUDGE N. NAGARESH Sd/- W.P.(C)No.1042 of 2024 :7: APPENDIX OF WP(C) 1042/2024 PETITIONER EXHIBITS Exhibit P1 Exhibit P2 Exhibit P3 Exhibit P4 Exhibit P5 Exhibit P6 Exhibit P7 Exhibit P8 TRUE COPY OF THE MARRIAGE CERTIFICATE DATED 24-02-2009 OF ST.MARY'S CURCH ,SRAMBICKAL TRUE COPY OF THE 1ST PAGE OF THE RATION CARD OF THE PETITIONER AND THE 4TH RESPONDENT TRUE COPY OF THE CERTIFICATE ISSUED FROM THE GRAMAPANCHAYATH WARD MEMBER DATED 23-07-2021 REGARDING THE RESIDENCE OF THE PETITIONER TRUE COPY OF THE ONE AND SAME CERTIFICATE THE ISSUED THAIKATTUSSERY VILLAGE OFFICER DATED 10-09-2015 FROM TRUE COPY OF THE INTERIM ORDER PASSED IN C.M.P. NO. 1901 OF 2021 OF 2022 IN M.C.NO. 19 OF 2021 OF THE JUDL. FIRST CLASS MAGISTRATE COURT-II DATED 30.07.2021 CHERTHALA TRUE COPY OF THE POSSESSION NOTICE ISSUED BY THE 1ST RESPONDENT DATED 21-09-2023 TRUE COPY OF THE NOTICE DATED NIL, ACKNOWLEDGE BY THE 3RD RESPONDENT ON 01-01-2024 TRUE COPY OF THE COMPLAINT DATED 04-01-2024 SUBMITTED BY THE PETITIONER TO THE DY.S.P. CHERTHALA Exhibit P9 TRUE COPY OF THE 1ST PAGE OF THE RATION CARD OF THE PETITIONER IN 24.12.2013
Questions this judgment answers
What did the Court decide in this case?
The Court recorded the following disposition: In the facts of the case, the writ petition is disposed of
Which statutory provisions did this judgment involve?
SARFAESI Act, 2002.
Which court decided this case, and when?
Kerala High Court, on 10 Jan 2024. The bench was N NAGARESH.
Precedent status how later indexed judgments have treated this case
No known negative treatment found in the Courts & Cases corpus.
This is a result about the indexed corpus, not a finding that the judgment remains good law. Coverage may be incomplete.