High Court of KeralaSingle Judge2013-04-11Disposed of; original petition disposed of with...

Catholic Syrian Bank Ltd v. Sulochana, Deepak Patel and Village Office, Halikode (OP(C).No. 1544 of 2013)

Case / Petition Number:OP(C).No. 1544 of 2013 (O)

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: Thomas P. Joseph
Judgment Date: 2013-04-11
Court Decision / Holding: Original Petition disposed of; without prejudice to the petitioner’s right to seek appropriate relief against Ext.P12, judgment and decree before the appropriate forum as provided under the law.
Final Disposition: Disposed of; original petition disposed of without prejudice to the petitioner seeking appropriate relief before the proper forum.

Parties to the Case

Appellants / Petitioners

Catholic Syrian Bank Ltd, Kozhicode City Branch, Kozhikode-673001, represented by Senior Manager, Kozhikode City Branch

Respondents

Sulochana aged 57 years, W/o Chandran, residing at Nisha Nivas, 8th Stone Chayam, Tholikode Village, Nedumangad Taluk, Aluk-695541
Deepak Patel, aged 35 years, S/o Maheepathi, residing at Kuriyil Lane, 18/855 Thali P.O., Kasba Village, Kozhikode-673001
The Village Office, Thalikode Village, Nedumangad Taluk, Trivandrum District-695541

Legal Representation & Advocates

Counsels for Petitioners

• R. S. Kalkura
• M. S. Kalesh
• A. V. Priya
• Harish Gopinath
• Smt.

Case Synopsis & Summary

This Original Petition (OP(C).No. 1544 of 2013) was filed by the Catholic Syrian Bank Ltd seeking to quash Ext.P12 judgment in O.S. No. 597 of 2010 passed by the Principal Munsiff, Nedumangad, and Ext.P11 plaint, on the ground that fraud and collusion between the 1st respondent, Sulochana, and the 2nd respondent, Deepak Patel, tainted the proceedings. The bank alleges that in 2001 the 1st respondent and her husband assigned property to the 2nd respondent, who after obtaining the loan facilities from the bank, offered the property as security and created an equitable mortgage. The suit O.S. 597/2010, filed by the 1st respondent seeking declarations that the parties’ executed documents were fraudulent, led to Ext.P12, which declared title and possession in favor of the 1st respondent and restrained the 2nd respondent and others from trespassing. The petitioner contends that Ext.P12 and the underlying process are illegal due to fraud and seeks appropriate relief. The learned judge discusses the distinction between fraud on the court and fraud on a party, and examines whether Article 227 of the Constitution of India can be invoked where facts are disputed. Relying on United India Insurance Co. v. Sanjay Singh, Renuka Devi v. D Manohara, and Indian Bank v. Satyam Fibers, the court notes the inherent power to recall judgments obtained by fraud in appropriate circumstances but concludes that the petition should be disposed of without prejudice to other remedies, leaving other avenues open in the proper forum.

Provisions of Law Cited

Article 227 of the Constitution of IndiaSection 151, CPC

Legal Doctrines & Maxims

Fraud on the court vs fraud on a party
Inherent power of the court to recall its judgment (Art. 227, CPC 151)

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner argues that fraud permeates the record, with the 1st respondent and the 2nd respondent colluding to defeat the bank by obtaining a decree in O.S. 597 of 2010 through deceit. It asserts that there is fraud on the court, justifying interference under Article 227 of the Constitution of India. Distinctions between fraud on court and fraud on a party are emphasized, and reliance is placed on Renuka Devi v. D Manohara and Indian Bank v. Satyam Fibers to invoke inherent powers to recall a judgment obtained by fraud, with reference to Section 151 CPC. The petition also asks for recall of Ext.P12 and related relief, or, if not entertained, to pursue remedies in appropriate fora.

Contentions of Respondents

Not stated in document.

Cited Precedents (4)

Case Name	Citation	Treatment	Explanation
United India Insurance Co. Ltd v. Sanjay Singh	AIR 2000 SC 1165	Positive	Cited as authority that fraud on the court allows recall by the affected party in the same court.
Renuka Devi v. D Manohara	1998-1 LW 355	Positive	Cited for the doctrine of recall based on fraud on the court; supports inherent power to recall judgments obtained by fraud.
Indian Bank v. Satyam Fibers (India) Pvt. Ltd	1996 (5) SC 550	Positive	Held that judiciary possesses inherent power under Section 151 CPC to recall its judgments.
Bhagt Singh v. Jagsir Sawhney	AIR 1941 Calcutta 670	Mentioned Only	Mentioned in context; not explicitly adopted or distinguished in the decision.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE THOMAS P.JOSEPH** ## **THURSDAY, THE 11TH DAY OF APRIL 2013/21ST CHAITHRA 1935** ## **OP(C).No. 1544 of 2013 (O)** **--------------------------OS.597/2010 of PRL.MUNSIFF COURT,NEDUMANGAD** **PETITIONER(S) :** **THE CATHOLIC SYRIAN BANK LTD KOZHIKODE CITY BARNCH, KOZHIKODE , REPRESENTED B ITS SENIOR MANAGER, KOZHIKODE CITY BRANCH, KOZHIKODE - 673001.** **BY ADVS.SRI.R.S.KALKURA SRI.M.S.KALESH SMT.A.V.PRIYA SRI.HARISH GOPINATH** **RESPONDENT(S) :** ## **`** **1. SULOCHANA AGED 57 YEARS, W/O. CHANDRAN, RESIDINGA T NISHA NIVAS, 8TH STONE CHAYAM, THOLIKODE VILLAGE NEDUMANGAD ALUK - 695541.** **2. DEEPAK PATERL, AGED 35 YEARS,** - **S/O. MAHEEPATHI, RESIDING AT KURIYIL LANE, 18/855 THALI P.O., KASBA VILLAGE, KOZHIKODE - 673001.** **3. THE VILLAGE OFFICE,T HALIKODE** - **NEDUMANGAD, TRIVANDRUM DISTRICT - 695541.** **THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 11-04-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **BP** ## **OP(C).No. 1544 of 2013 (O)** ## **APPENDIX** ## **PETITIONER'S EXHIBITS :** - **P1: COPY OF THE LETTER OF CONFIRMATION OF DEPOSIT OF TITLE DEEDS DT 16/7/2010 IN FAVOUR OF THE PETITIONER BANK.** - **P2: COPY OF SANCTION ISSUED BY THE PETITIONER BAK TO THE SECOND REPONDENT DT 16/7/2010.** - **P3: COY OF THE PROMISSORY NOTE DT 16/7/2010 FOR RS.5,25,000** - **P4 COPY OF THE AGREEMENT OF LOAN DT 16/7/2010** - **P5: COPY OF THE APPLICATION DT 20/3/2011 SUBMITTED BY THE SECOND RESPONDENT WITH THE PETITIONER BANK.** - **P6: COPY OF THE PROMISSORY NOTE DT 31/3/2011 EXECUTED BY THE SECOND RESPONDENT IN FAVOUR OF THE PETITIONER BANK** - **P7: COPY OF THE AGREEMENT FOR GRANT OF OVERDRAFT EXECUTED BY THE SECOND RESPONDENT IN FAVOUR OF THE PETITIONER BANK.** - **P8: COPY OF CONFIRMATION OF CONSTRUCTIVE DPOSIT OF TITLE DEEDS DT 31/3/2011 EXECUTED BY THE PETITIONER IN FAVOUR OF THE BANK.** - **P9: COPY OF THE SALE DEED NO.1841/2001 DT 19/11/2001 OF THE VITHURA SUB REGISTRY OFFICE EXECUTED BY CHANDRAN AND SULOCHANA INFAVOUR OF DEEPAK PATEL.** - **P10: COPY OF THE SALE DEED NO. 1842/2001 DT 19/11/2001 OF THE VITHURA SUB REGISTRY OFFICE EXECUTED BY SULOCHANA IN FAVOUR OF THE R2.** - **P11: COPY OF THE PLAINT IN O.S. 597/2010 BEFORE THE PRINCIPAL MUNSIFF'S COURT, NEDUMANGAD.** - **P12: COPY OF THE JUDGMENT DT 31/8/2011 IN O.S. 597/2010 OF THE PRINCIPAL MUNSIFF'S COURT NEDUMANGAD.** - **P13: COPY OF THE LETTER DT 17/12/2012 ISSUED BY THE VILLAGE OFFICER THOLIKODE VILLAGE, NEDUMANGAD TALUK.** - **P14: COPY OF THE ENCUMBRANCE CERTIFICATE DT 26/7/2010 FOR A PERIOD COMMENCING FROM 1-1-1998 TO 24/7/2010.** **RESPONDENT'S EXHIBITS : NIL.** **//TRUE COPY//** **P.A. TO JDUGE** **BP** ## **THOMAS P. JOSEPH, JUDGE.** **- - - - - - - - - - - - - - - - - O.P.(C). No.1544 of 2013** **- - - - - - - - - - - - - - - - Dated this the 11[th] day of April, 2013.** ## **JUDGMENT** This Original Petition is filed by the Catholic Syrian Bank Ltd. praying for a direction or order to quash Ext.P12 judgment as illegal and wrong, to declare that attempt of the 1[st] respondent to get change of registry to her name on the strength of the decree in O.S. No. 597 of 2010 of the Munsiff's Court, Nedumangad (Ext.P12) is illegal, to quash Ext.P11, plaint in O.S. No. 597 of 2010 of the Principal Munsiff's Court, Nedumangad as vitiated by fraud and collusion between respondents 1 and 2 and for other reliefs. 2. According to the petitioner, 1[st] respondent assigned her property to the 2[nd] respondent in the year, 2001 as per a registered instrument. 1[st] respondent and her husband assigned their property to the 2[nd] respondent in the year, 2001. 2[nd] respondent availed loans from the petitioner amounting to lakhs of rupees and for those loans and for loans availed by another person, the said property was offered as security by creating equitable mortgage. Later, 1[st] respondent filed Ext.P11 suit - O.P.(C) No. 1544/2013 : 2 : O.S No. 597 of 2010 in the Munsiff's Court, Nedumangad against the 2[nd] respondent for a declaration that the documents she had executed in favour of the 2[nd] respondent and others are illegal having been executed by fraud and other vitiating circumstances. 2[nd] respondent remained ex parte in the suit. Following that, learned Munsiff passed Ext.P12 judgment in O.S. No. 597 of 2010 declaring title and possession of the suit property with the 1[st] respondent and restraining the 2[nd] respondent and persons claiming through or under him from trespassing into the suit property. It is submitted that pursuant to Ext.P12, judgment 1[st] respondent applied for mutation of property in her name. Petitioner learned about the above only recently. Hence this Original Petition seeking reliefs as above mentioned. 3. Learned counsel has contended that fraud is writ large on the face of record as revealed from the manner in which 1[st] respondent initiated the suit against the 2[nd] respondent and, the 2[nd] respondent who, having offered the said property as security to the petitioner and having availed huge amount by way of loans for himself and others remained ex parte in O.S. No. 597 of O.P.(C) No. 1544/2013 : 3 : 2010. Hence this Court should invoke its power under Article 227 of the Constitution of India, it is argued. 4. There must be a distinction between fraud played on court and fraud played on a party. Here, the allegation is that respondents 1 and 2 colluded and filed O.S. No. 597 of 2010 to defraud the petitioner. 5. Question whether there was any fraud played by the respondent is a question of fact. Disputed questions of fact cannot be decided under Article 227 of the Constitution of India at the first instance. Decisions of the Apex Court (See for instance, United India Insurance Co. Ltd v. Sanjay Sing and others - AIR 2000 SC 1165) say that when an order is obtained by playing fraud on court, the party affected can move application in the very same court to recall the order. Learned counsel has invited my attention to the decision of the Madras High Court in 1998-1 LW 355 - **Renuka Devi v. D Manohara** where reference is made to **Indian Bank v. Satyam Fibers (India) Pvt. Ltd** (1996 (5) SC 550) in which it is held that judiciary in India possesses inherent power especially under Section 151 of the Code of Civil Procedure to recall its judgment O.P.(C) No. 1544/2013 : 4 : or order if it is obtained by playing fraud on court and that in the case of fraud on a party to the suit or proceeding, court may direct the affected party to file a separate suit to set aside the decree obtained by fraud. Learned counsel has also invited my attention to paragraph 16 of the judgment where reference is made to the decision in **Bhagt Singh v. Jagsir Sawhney** (AIR 1941 Calcutta 670). 6. Learned counsel submits that in case this court is not inclined to entertain this original petition for the reason that disputed facts are involved, option of petitioner either to file application before the court concerned to recall its judgment, file appeal against the judgment and decree seeking leave as the petitioner is affected by it or, to file separate suit to set aside judgment and decree in O.S No. 597 of 2010 may be reserved. 7. I make it clear that in the view I have taken, it is open to the petitioner to seek appropriate relief against Ext.P12, judgment and decree in the appropriate forum as provided under the law. Resultantly, this Original Petition is disposed of without prejudice to the right of petitioner to seek appropriate relief O.P.(C) No. 1544/2013 : 5 : against Ext.P12, judgment and decree before the appropriate forum as provided under the law. **Sd/- THOMAS P. JOSEPH, JUDGE.** ## **rv** O.P.(C) No. 1544/2013 : 6 :