K.C. Sabu v. Chief Judicial Magistrate, Kottayam & Others

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: N. Nagareesh
Judgment Date: 2024-02-23
Court Decision / Holding: Writ petition dismissed.
Final Disposition: Writ petition dismissed. The Court held that Exts.P7 and P8 do not affect the petitioner’s rights and that challenges to the validity of the deed should proceed in civil court; SARFAESI remedies remain available.

Parties to the Case

Appellants / Petitioners

K.C. Sabu

Respondents

Chief Judicial Magistrate, Kottayam Collectorate P.O, Kottayam District – 686002
The South Indian Bank Ltd., represented by its Chief Manager & Authorized Officer, Regional Office, K.K. Road, Kottayam, PIN – 686002
Rajeev K.N S/o. K.S. Narayanan Nair, Kulangara House, Thirunakkara, Kottayam, PIN – 686001
Sandhya K.V W/o. Rajeev K.N, Kulangara House, Thirunakkara, Kottayam, PIN – 686001
Vrinda Rajesh W/o. Late Rajesh, Vaishnavam, Kudamaloor, Kottayam, PIN - 686017

Legal Representation & Advocates

Counsels for Petitioners

• Liji J. Vadakedom
• Tom E. Jacob
• Rexy Elizabeth Thomas
• Athul V. Vadakkedom

Counsels for Respondents

• Smt.Sheeja C.S.
• P.A. Augustine (Areekattel)

Case Synopsis & Summary

This writ petition, filed by K. C. Sabu, challenges Exts.P7 and P8 orders of the Chief Judicial Magistrate, Kottayam, which directed demarcation of the mortgaged property through a Taluk Surveyor and issued notice to the Tahsildar. The petitioner had, in 2011, executed Ext.P1 sale in favour of the 3rd respondent to secure a loan from the 2nd respondent bank; later, the 3rd respondent allegedly refused reconveyance in 2014, prompting OS No.24/2015 against 3rd–5th respondents. The bank subsequently invoked the SARFAESI Act, 2002 to take possession of and sell the secured asset. Ext.P7 permitted appointment of a Taluk Surveyor to identify, measure and demarcate the property, and Ext.P8 directed notice to the Tahsildar. The petitioner argues that the magistrate’s exercise of powers under Section 14 SARFAESI has no remit for demarcation and that the title deed is a sham; he also relies on Apex Court guidance in Ayubkhan Pathan to allege he cannot approach the DRT. The bank contends that 3rd–5th respondents own the mortgaged plot with well-defined boundaries; demarcation is necessary to safeguard the asset; the civil suit (OS 24/2015) is pending and the petition cannot obstruct SARFAESI proceedings. The court dismissed the petition, holding there is a registered deed in favour of 3rd–5th respondents and Exts.P7/P8 do not affect the petitioner’s rights; challenges to the deed should proceed in civil court.

Provisions of Law Cited

Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002Section 13 of SARFAESI Act, 2002Section 14 of SARFAESI Act, 2002

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner argues that the title deed in favour of the 3rd respondent is sham. He asserts that Exts.P7 and P8 amount to demarcation under Section 14 of the SARFAESI Act, 2002, which is beyond the scope of a Magistrate and that such issues should be resolved in civil proceedings; he claims the bank has remedies for boundary demarcation and that his challenge to the deed should be pursued in OS 24/2015. He relies on a Supreme Court reference in Ayubkhan Pathan to contend he cannot approach the DRT.

Contentions of Respondents

The bank contends that the 3rd–5th respondents own the mortgaged plot with well-defined boundaries; they mortgaged the property to secure a loan; Exts.P7 and P8 identify the secured asset and do not infringe the petitioner’s rights; the petitioner’s statements that the title deed is sham should be resolved in the pending civil suit; SARFAESI proceedings are proper and legitimate.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Ayaaubkhan Noorkhan Pathan v. State of Maharashtra and another	2012 KHC 4653	Mentioned Only	Cited by the petitioner; the judgment is referenced but not applied as a binding ruling in the dispositive reasoning.

Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE N.NAGARESH** **FRIDAY, THE 23[RD] DAY OF FEBRUARY 2024/4TH PHALGUNA, 1945** **WP(C) NO. 22355 OF 2023** ## **PETITIONER:** **K.C. SABU, AGED 60 YEARS S/O. LATE K. CHELLAPPAN KATHU NIVAS, THIRUNAKKARA KARA, KOTTAYAM P.O., KOTTAYAM VILLAGE, KOTTAYAM TALUK – 686001** **BY ADVS. LIJI.J.VADAKEDOM TOM E. JACOB REXY ELIZABETH THOMAS ATHUL V. VADAKKEDOM** ## **RESPONDENTS:** - **1 CHIEF JUDICIAL MAGISTRATE, KOTTAYAM COLLECTORATE P.O, KOTTAYAM DISTRICT – 686002** - **2 THE SOUTH INDIAN BANK LTD., REPRESENTED BY ITS CHIEF MANAGER & AUTHORIZED OFFICER, REGIONAL OFFICE, K.K. ROAD, KOTTAYAM, PIN – 686002** - **3 RAJEEV K.N S/O. K.S. NARAYANAN NAIR, KULANGARA HOUSE, THIRUNAKKARA, KOTTAYAM, PIN – 686001** - **4 SANDHYA K.V W/O. RAJEEV K.N, KULANGARA HOUSE, THIRUNAKKARA, KOTTAYAM, PIN – 686001** - **5 VRINDA RAJESH W/O. LATE RAJESH, VAISHNAVAM, KUDAMALOOR, KOTTAYAM, PIN - 686017** W.P.(C) No.22355/2023 : 2 : **BY ADVS. SMT.SHEEJA C.S., SR. GOVERNMENT PLEADER P.A.AUGUSTINE(AREEKATTEL)** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 23.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P.(C) No.22355/2023 : 3 : ## **N. NAGARESH, J.** ````````````````````````````````````````````````````````````` ## W.P.(C) No.22355 of 2023 ````````````````````````````````````````````````````````````` _Dated this the 23[rd] day of February, 2024_ ## **J U D G M E N T** ~ ~ ~ ~ ~ ~ ~ ~ ~ The petitioner is before this Court challenging Exts.P7 and P8 orders passed by the 1[st] respondent-Chief Judicial Magistrate, Kottayam. 2. The petitioner states that the 3[rd] respondent, who is a close friend of the petitioner, has been running a financial institution along with respondents 4 and 5. The 3[rd] respondent is the husband of the 4[th] respondent and the 5[th] respondent is the sister-in-law of the 3[rd] respondent. The 3[rd] respondent has been borrowing money for business, from the petitioner. 3. In May, 2011, the 3[rd] respondent wanted ₹35 lakhs urgently and suggested the petitioner to deposit title deed of W.P.(C) No.22355/2023 : 4 : the property of the petitioner with the 2[nd] respondent-Bank to secure a loan. Later, the 3[rd] respondent wanted the petitioner to execute a conveyance deed with respect to the first plot in favour of respondents 3 to 5 so as to mortgage the same. The 3[rd] respondent assured the petitioner that the property will be reconveyed to the petitioner. Therefore, the petitioner executed Ext.P1 sale deed dated 24.05.2011 in favour of the 3[rd] respondent. The Bank advanced ₹45 lakhs on 05.03.2011 to the respondents. 4. In the year 2014, when the petitioner requested the 3[rd] respondent to reconvey the property by executing a sale deed, the 3[rd] respondent refused to do so. The petitioner therefore filed OS No.24/2015 against respondents 3 to 5. In the meanwhile, the Bank has initiated proceedings invoking the provisions of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 to take over the petitioner's property and sell the same. W.P.(C) No.22355/2023 : 5 : 5. By Ext.P7 order, the Chief Judicial Magistrate, Kottayam permitted appointment of Taluk Surveyor to identify, measure out and demarcate the property. By Ext.P8 order, the Chief Judicial Magistrate, Kottayam issued notice to the Tahsildar. The petitioner is challenging Exts.P7 and P8. 6. The counsel for the petitioner argued that the title deed executed in favour of the 3[rd] respondent by the petitioner is a sham document. OS No.24/2015 is pending in the civil court in this regard. By Ext.P6, the Advocate Commissioner has stated that he cannot identify the property. The Chief Judicial Magistrate has appointed Taluk Surveyor. 7. The petitioner submitted that the Bank has to go to Taluk Surveyor for demarcation of property. The Bank has a remedy for fixation of boundary. A Magistrate exercising powers under Section 14 has no such powers. 8. The petitioner cannot be said to be a person aggrieved by any action of the Bank under Section 13 or W.P.(C) No.22355/2023 : 6 : Section 14 of the SARFAESI Act, 2002. The petitioner submitted that in view of the judgment of the Apex Court in _**Ayaaubkhan Noorkhan Pathan v. State of Maharashtra and another** [2012 KHC 4653]_ , the petitioner cannot approach the Debts Recovery Tribunal. 9. The 2[nd] respondent resisted the writ petition. On behalf of the 2[nd] respondent, it is submitted that respondents 3 to 5 are the owners of the plot in question. The property has well demarcated boundary walls on all sides. Respondents 3 to 5 have mortgaged the property for availing loan. When the Advocate Commissioner tried to take possession of the secured asset, the petitioner disputed the identity of the property and unlawfully obstructed the process of taking possession. The writ petition is without any force and it is liable to be dismissed. 10. I have heard the learned counsel for the petitioner and the learned Standing Counsel for the 2[nd] respondent. I have also heard the learned Senior Government Pleader representing the 1[st] respondent. W.P.(C) No.22355/2023 : 7 : 11. The petitioner challenges Exts.P7 and P8 proceedings of the Chief Judicial Magistrate, Kottayam. By Ext.P7 order, the Chief Judicial Magistrate allowed the application filed by the Bank to appoint Taluk Surveyor to identify, measure out and demarcate the property mortgaged by the 3[rd] respondent. By Ext.P8, the Chief Judicial Magistrate issued letter to the Tahsildar. Exts.P7 and P8 orders would not affect any claim of the petitioner nor it will substantially interfere with any rights of the petitioner. Respondents 3 to 5 have mortgaged a property to the Bank to avail financial advance. Respondents 3 to 5 hold the property under a title deed. According to the petitioner, the petitioner had conveyed property to respondents 3 to 5 by way of a sham document. In effect, the argument of the petitioner is that the title deed of the property has not conveyed the property to respondents 3 to 5. 12. The petitioner cannot advance such arguments when admittedly there is a registered deed of conveyance of the petitioner's property in favour of respondents 3 to 5. If W.P.(C) No.22355/2023 : 8 : the petitioner is challenging the legality or genuineness of a registered document, the petitioner has to approach competent civil court and obtain orders to that effect. The petitioner has, in fact, filed a civil suit in this regard. But, the civil court has not passed any order or judgment in favour of the petitioner so far. 13. Respondents 3 to 5 have mortgaged the property in question by deposit of title deed, which is a registered title deed. When respondents 3 to 5 failed to maintain the loan account, the Bank has initiated proceedings under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002. The petitioner cannot aspire to stop the proceedings initiated by the Bank by merely making a statement or allegation that the title deed held by the 2[nd] respondent is a sham document. In the circumstances, I do not find any merit in the writ petition. The writ petition is therefore dismissed. Sd/- **N. NAGARESH, JUDGE** aks W.P.(C) No.22355/2023 : 9 : ## **APPENDIX OF WP(C) 22355/2023** ## **PETITIONER'S EXHIBITS** **Exhibit P1 THE COPY OF THE SALE DEED NO. 1417/2011 DATED 24.05.2011 OF THE ADDITIONAL SRO, KOTTAYAM EXECUTED BY THE PETITIONER** - **Exhibit P2 THE COPY OF THE PLAINT IN O.S. NO. 24/2015 BEFORE THE SUB COURT, KOTTAYAM** - **Exhibit P3 THE COPY OF THE PETITION UNDER SECTION 14 OF THE SARFAESI ACT FILED AS CMP NO. 609/2018 BEFORE THE COURT OF THE HON'BLE CHIEF JUDICIAL MAGISTRATE** - **Exhibit P4 THE COPY OF THE AFFIDAVIT AND PETITION DATED 22.11.2019 FILED BY THE PETITIONER IN CMP NO. 609/2018 BEFORE THE COURT OF THE CHIEF JUDICIAL MAGISTRATE, KOTTAYAM FOR IMPLEADING HIM AS ADDITIONAL RESPONDENT NO.4** - **Exhibit P5 THE COPY OF THE OBJECTION FILED BY 2ND RESPONDENT TO EXHIBIT P4- IMPLEADING PETITION FILED BY THE PETITIONER** - **Exhibit P6 THE COPY OF THE COMMISSION REPORT IN CMP 609/2018 BEFORE THE COURT OF THE CHIEF JUDICIAL MAGISTRATE, KOTTAYAM** - **Exhibit P7 THE CERTIFIED COPY OF THE EXTRACT ORDER SHEET IN CMP NO.609/2018 PASSED BY 1ST RESPONDENT-CHIEF JUDICIAL MAGISTRATE ON 03.03.2022** - **Exhibit P8 THE CERTIFIED COPY OF THE EXTRACT ORDER SHEET IN CMP NO. 609/2018 PASSED BY THE 1ST RESPONDENT - CHIEF JUDICIAL MAGISTRATE ON 06.06.2023** ## **RESPONDENT'S EXHIBITS** **Exhibit R-2(a) Judgment passed by the Sub Court, Kottayam in O.S. No. 24/2015.**