Ashraf v. Kerala Gramin Bank and others

## `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ``` THE HONOURABLE MR. JUSTICE T.R.RAVI ``` ``` WEDNESDAY, THE 25[TH] DAY OF JANUARY 2023 / 5TH MAGHA, 1944 ``` ## `WP(C) NO. 8812 OF 2022` ## `PETITIONER:` ``` 1ASHRAF AGED 44 YEARS S/O. KAMMAD HAJEE, MOOLAKUZHIYIL HOUSE, PAZHAMALLOOR P.O., MALAPPURAM DISTRICT BY ADVS. C.A.NAVAS T.K.SASIKUMAR ``` ## `RESPONDENTS:` - `1 THE CHIEF MANAGER KERALA GRAMIN BANK, (POYAKKATTIRI SECTION), REGIONAL OFFICE, MALAPPURAM P.O., MALAPPURAM DISTRICT,PIN-676 505` - `2 THE REGIONAL MANAGER, KERALA GRAMIN BANK, REGIONAL OFFICE, MALAPPURAM P.O., MALAPPURAM DISTRICT,PIN-676 505` - `3 THE BRANCH MANAGER, KERALA GRAMIN BANK, POYAKKATTIRI BRANCH, POYAKKATTIRI.P.O., MALAPPURAM DISTRICT,PIN-676 321` - `4 THE STATION HOUSE OFFICER, KOLATHUR POLICE STATION, KOLATHUR P.O., MALAPPURAM DISTRICT,PIN-679 338` - `*5 ADDL.R5.HAMEED, AGED 55 YEARS S/O.MUHAMMED, PILAYACHOLA HOUSE, (BUILDING NO.KP548/VIKURUVA PANCHAYATH), KADUNGAPURAM.P.O, PERINTHALMANNA, MALAPPURAM DISTRICT PIN 676 507.` - `*6 ADDL.R6.MARIYUMMA AGED 48 YEARS W/O.HAMEED, PILAYACHOLA HOUSE, (BUILDING NO.KP548/VIKURUVA PANCHAYATH), KADUNGAPURAM.P.O, PERINTHALMANNA, MALAPPURAM DISTRICT PIN 676 507. **ADDL R5 AND R6 IMPLEADED AS PER ORDER DATED 26-07-2022 IN IA 1/2022. BY ADVS.` ``` K.MADHUSOODANAN PUSHPARAJAN KODOTH T.G.PAUL MATHEW JACOB (KUNNATHU) ``` ``` WPC No.8812 of 2022 ``` 2 ``` SYRIAC JOSEPH K.JAYESH MOHANKUMAR VANDANA MENON VIMAL VIJAY ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON ``` ``` 25.01.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` WPC No.8812 of 2022 ``` 3 ## **T.R. RAVI, J.** ## **-----------------------------------W.P.(C.) No.8812 of 2022 -----------------------------------Dated this the 25[th] day of January, 2023** ## **JUDGMENT** This writ petition is filed praying for the following reliefs:- i) To call for the records relating to Exhibits P1 to P14 and to issue a Writ of Mandamus or any other appropriate Writ Direction or order directing and commanding the respondents 1 to 3 to hand over actual physical possession of the property sold under SARFAESI proceedings vide Exhibit P3 Sale Certificate dated 28.12.2016 and Exhibit P8 registered Sale Deed dated 27.01.2021 forth with, if needed with the assistance of the 4th respondent and any further delay is liable to be proceeded for exemplary cost and damages. ii) To issue a Writ of Mandamus or any other appropriate Writ Direction or order declaring that the Petitioner is entitled to get fair amount of compensation/damages from the respondents 1 to 3 for the differential/shortage extent of around 10 cents of property offered in the Exhibit P3 Sale Certificate and Exhibit P8 registered Deed compared to actual extent found in Exhibit P11 tax receipt. ``` WPC No.8812 of 2022 ``` 4 iii) Issue a Writ of Mandamus or any other appropriate Writ Direction or order directing and commanding the respondents to return the purchase money paid as revealed by Exhibit P3 Sale certificate together with commercial rate of interest from the 28.12.2016, the date of Sale and damages and cost if the respondents 1 to 3 are further delaying the process of handing over of the actual physical possession of the auctioned property together with damages for the differential shortage of extent of property offered in the Sale Deed.” 2. The petitioner is an auction purchaser in an auction sale conducted by respondents 1 to 4, of the property belonging to respondents 5 and 6, for recovery of the debt due to the bank. According to the bank, the property was put in possession of the auction purchaser after the auction. Several proceedings have taken place and it is an admitted fact that the petitioner is not in possession of the property. According to the petitioner, after he was put in possession and before the completion of the sale process by registration, the original borrower had trespassed into the property. It is in the above ``` WPC No.8812 of 2022 ``` 5 circumstances, this writ petition was filed praying for putting him in possession of the property with the assistance of police. The petitioner has also a case that there is a shortage of ten cents in the property which has been handed over for which he has a remedy of seeking damages. Claim for damages has also put forth regarding delay in the handing over of physical possession. 3. Reliance is placed on the judgment of this Court in **Kumaran A.A. v. Superintendent of Police, Thrissur and Others; 2022 (3) KHC 616** , wherein this Court had held that a writ petition is maintainable for correcting illegal actions carried on by borrowers who trespassed into the properties which has been subject matter of sale. This Court has categorically held that such persons can be removed forcefully with the help of police. 4. I do not find any reason to take a different view regarding the prayer for possession made in the writ petition. Regarding the aspect of damage, it is not a ``` WPC No.8812 of 2022 ``` 6 matter which can be dealt with in a writ petition under Article 226 of the Constitution of India, since the same requires proper pleadings on either side and letting in evidence in support of the claim. In such circumstances, this writ petition is disposed of directing respondents 1 to 3 to hand over possession to the petitioner with the help of the 4[th] respondent of the properties that had been taken possession with the help of Advocate Commissioner within two weeks from today. Regarding the prayer for damages, right of the petitioner to claim such damages on any of the grounds available under law are left open. ## **Sd/-** ## **T.R.RAVI** ## **JUDGE** SKP/25-01 ``` WPC No.8812 of 2022 ``` 7 ## `APPENDIX OF WP(C) 8812/2022` |`PETITIONER’S`|`EXHIBITS:`| |---|---| |`EXHIBIT P1`|`TRUE COPY OF NON ENCUMBRANCE CERTIFICATE`| ||`DATED 13.08.2015`| |`EXHIBIT P2`|`TRUE COPY OF THE JUDGMENT DATED 27.01.2016 IN`| ||`OP(DRT) NO.6/2016 OF THE HONOURABLE HIGH`| ||`COURT OF KERALA`| |`EXHIBIT P3`|`TRUE COPY OF THE SALE CERTIFICATE DATED`| ||`28.12.2016`| |`EXHIBIT P4`|`THE TRUE COPY OF THE RECEIPT DATED 28.02.2017`| |`EXHIBIT P5`|`TRUE COPY OF THE RELEVANT PAGES OF COMMON`| ||`JUDGMENT DATED 24.10.2018 IN WPC`| ||`NO.12045/2017 AND CONNECTED CASE OF THE`| ||`HONOURABLE HIGH COURT OF KERALA`| |`EXHIBIT P6`|`TRUE COPY OF THE LETTER DATED 04.04.2019`| |`EXHIBIT P7`|`TRUE COPY OF THE JUDGMENT DATED 31.05.2019 IN`| ||`WPC NO.14696/2019 OF THE HONOURABLE HIGH`| ||`COURT OF KERALA`| |`EXHIBIT P8`|`TRUE COPY OF THE REGISTERED SALE CERTIFICATE`| ||`DATED 27.01.2021`| |`EXHIBIT P9`|`TRUE COPY OF THE JUDGMENT DATED 06.08.2021 IN`| ||`WPC NO.14965/2021 O THE HONOURABLE HIGH COURT`| ||`OF KERALA`| |`EXHIBIT P10`|`TRUE COPY OF THE LETTER NO.190/21 DATED`| ||`16.09.2021 OF KURUVA VILLAGE OFFICER`| |`EXHIBIT P11`|`TRUE COPY OF THE TAX RECEIPT DATED 30.10.2021`| ||`ISSUED BY THE KURUVA VILLAGE OFFICER`| |`EXHIBIT P12`|`TRUE COPY OF THE LAWYER NOTICE DATED`| ||`11.11.2021`| |`EXHIBIT P13`|`TRUE COPY OF THE REPLY NOTICE DATED`| ||`21.12.2021`| |`RESPONDENTS’`|`EXHIBITS:`| |`EXHIBIT R1A`|`A COPY OF THE BID CUM AUCTION SALE NOTICE`| ||`DATED 21-07-2015.`| |`EXHIBIT R1B`|`COPY OF THE ORDER DATED 09-11-2020 IN`| ||`CRL.M.C. NO.1715/2020.`| |`EXHIBIT R1C`|`COPY OF THE REPORT OF THE COMMISSIONER`| ||`TAKEING PHYSICAL POSSESSION OF THE PROPERTY`| ||`AND HOUSE DATED 23.02.2015.`| |`EXHIBIT R1D`|`COPY OF THE ORDER DATED 03.11.2016 IN T.S.A.`| ||`NO.1182/2016 (S.A. NO.78/201) BY DRT`| ||`ERNAKULAM`| |`EXHIBIT R5`|`TRUE COPY OF THE POSSESSION NOTICE DATED`| ||`22.01.2015`| ``` WPC No.8812 of 2022 ``` 8 ``` EXHIBIT R5(A)TRUE COPY OF THE PHOTOGRAPH OF THE HOUSE CONSTRUCTED IN THE PROPERTY EXHIBIT R5(B)TRUE COPY OF THE PHOTOGRAPH OF THE HOUSE CONSTRUCTED IN THE PROPERTY EXHIBIT R5(C)TRUE COPY OF THE PHOTOGRAPH OF THE HOUSE CONSTRUCTED IN THE PROPERTY ``` ## `TRUE COPY` ``` P.A. TO JUDGE ```