Mohan K. George v. The Authorized Officer, IFCI Limited; Interim Resolution Professional, RajU Palanikunnathil Kesavan; A. Abdul Rasheed; Heera Constructions (P) Ltd.; Concept Reality India Pvt. Ltd.; K.G. Cheriyan; K.G. Babukutty; Ammukutty George

W.A.No.1782 of 2020 1 # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR** **&** **THE HONOURABLE MR. JUSTICE SHAJI P.CHALY** **THURSDAY, THE 15[TH] DAY OF SEPTEMBER 2022 / 24TH BHADRA, 1944 WA NO. 1782 OF 2020** **AGAINST THE JUDGMENT IN WP(C) 3658/2020 OF HIGH COURT OF** ## **KERALA** ## **APPELLANT/PETITIONER:** **MOHAN K.GEORGE, AGED 59 YEARS S/O.LATE K.C.GEORGE, RESIDING AT KERALASSERY VEEDU, KIZHAKKUMKARA, VAYAKKALATHUMURI, ATTIPRA VILLAGE, THIRUVANANTHAPURAM TALUK, THIRUVANANTHAPURAM DISTRICT, REP. BY HIS POWER OF ATTORNEY HOLDER ADV.A.PUSHPADAS, AGED 48 YEARS, S/O.LATE K.ANNAMALA, SHRAMIK LEGAL, CONSULTANCY, T.C.NO.27/1002, WEST OF ADMINISTRATIVE TRIBUNAL, VANCHIYOOR POST, TRIVANDRUM, KERALA-695035. BY ADVS. LIJU.V.STEPHEN SMT.INDU SUSAN JACOB** ## **RESPONDENTS/RESPONDENTS:** - **1 THE AUTHORIZED OFFICER IFCI LIMITED, CONTINENTAL CHAMBERS, 2ND FLOOR, 142, M.G.ROAD, NUNGAMBAKKAM, CHENNAI-600034, HAVING ITS REGD. OFFICE AT IFCI TOWER, 61 NEHRU PLACE, NEW DELHI-110019.** - **2 THE INTERIM RESOLUTION PROFESSIONAL, MR.RAJU PALANIKUNNATHIL KESAVAN, CGNRA-9 (33/11383 A), KODAMASSERY LANE, CHALIKKAVATTOM, VENNALA** W.A.No.1782 of 2020 2 **P.O.,KOCHI-682028, KERALA, HAVING REG.NO.IBBI/IPA001/IP-P00801/2017-18/11356.** - **3 A.ABDUL RASHEED, (MORTGAGOR AND CORPORATE GUARANTOR) HEERA, GOLD LINKS ROAD, TKV NAGAR, KOWDIYAR, THIRUVANANTHAPURAM-695033.** - **4 M/S.HEERA CONSTRUCTIONS (P) LTD., HEERA PARK, M.P.APPAN ROAD, VAZHUTHACADU, TRIVANDRUM-695014, REPRESENTED BY ITS MANAGING DIRECTOR, MR.ABDUL RASHEED @ A.R.BABU, RESIDING AT HEERA GOLF LINKS ROAD, KOWDIAR, TRIVANDRUM-695003.** - **5 M/S.CONCEPT REALITY INDIA PVT.LTD., (MORTGAGOR AND CORPORATE GUARANTOR) HAVING ITS REGISTERED OFFICE AT SHOP NO.28, BUILDING NO.3, SEAWOOD HERITAGE, PLOT NO.50, SECTOR-4, KHARGHAR, NAVI MUMBAI, MAHARASHTRA-410210, REPRESENTED BY ITS MANAGING DIRECTOR, MR.S.CHANDRA BABU, AGED 52 YEARS, S/O.SURENDRAN, HAVING PERMANENT ADDRESS AT KARTHIK, KOTTATHALA P.O., KOTTARAKKARA TALUK, KOLLAM DISTRICT-691507, PRESENTLY RESIDING AT MUMBAI A-1801, CONCEPT UNNATHI, CHS LTD., PLOT NO.69, A, B, E AND F SECTOR-21, KHARGHAR, NAVI, MUMBAI-410210.** - **6 K.G.CHERIYAN, AGED 61 YEARS S/O.LATE K.C.GEORGE, RESIDING AT KERALASSERY VEEDU, KIZHAKKUMKARA, VAYAKKALATHUMURI, ATTIPRA VILLAGE, THIRUVANANTHAPURAM TALUK, THIRUVANANTHAPURAM DISTRICT, REP. BY HIS POWER OF ATTORNEY HOLDER ADV.C.T.THOMAS, AGED 60 YEARS, S/O.LATE DR.C.T.THOMAS, SHRAMIK LEGAL CONSULTANCY, T.C.NO.27/1002, WEST OF ADMINISTRATIVE TRIBUNAL, VANCHIYOOR POST, TRIVANDRUM, KERALA-695035.** - **7 K.G.BABUKUTTAN, AGED 60 YEARS** **S/O.LATE K.C.GEORGE, RESIDING AT KERALASSERY VEEDU, KIZHAKKUMKARA, VAYAKKALATHUMURI, ATTIPRA VILLAGE, THIRUVANANTHAPURAM TALUK, THIRUVANANTHAPURAM DISTRICT, REP. BY HIS POWER OF ATTORNEY HOLDER ADV.C.T.THOMAS, AGED 60 YEARS,** W.A.No.1782 of 2020 3 **S/O.LATE DR.C.T.THOMAS, SHRAMIK LEGAL CONSULTANCY, T.C.NO.27/1002, WEST OF ADMINISTRATIVE TRIBUNAL, VANCHIYOOR POST, TRIVANDRUM, KERALA-695035.** **8 AMMUKUTTY GEORGE, AGED 83 YEARS W/O.LATE K.C.GEORGE, RESIDING AT KERALASSERY VEEDU, KIZHAKKUMKARA, VAYAKKALATHUMURI, ATTIPRA VILLAGE, THIRUVANANTHAPURAM TALUK, THIRUVANANTHAPURAM DISTRICT, REP. BY POWER OF ATTORNEY HOLDER ADV.A.PUSHPADAS, AGED 48 YEARS, S/O.LATE K.ANNAMALA, SHRAMIK LEGAL CONSULTANCY, T.C.NO.27/1002, VANCHIYOOR POST, TRIVANDRUM, KERALA-695035.** **BY ADVS. SRI.P.A.GIREESH KUMAR FOR R1** **THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 15.09.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.A.No.1782 of 2020 4 ## **J U D G M E N T** Dated this the 15[th] day of September, 2022 ## **S.MANIKUMAR, CJ.** Before the writ court, petitioner/appellant has sought for the following reliefs: - (i) To call for the records leading to Exhibit-P19; - (ii) To issue a writ of certiorari setting aside Exhibit-P19; - (iii) To issue a writ of mandamus directing the 1[st] respondent to defer from proceeding in furtherance of Exhibit P5 notice. - (iv) To declare that the petitioner's and his co-owners' (respondents 6 to 8) properties which are fraudulently mortgaged by respondents 3 to 5 cannot be proceeded against for the debts and liabilities of the 4[th] respondent; - (v) To declare that as moratorium under Section 14 of the Insolvency and Bankruptcy Code, 2016 is in force the 1st Respondent cannot proceed against the allegedly mortgaged properties of the petitioner and other co-owners (respondents 6 to 8) until the proceedings before NCLT, Mumbai as CP(IB)-4447/MB/2018 is finally concluded. 2. Exhibit P19 dated 23.01.2020, which is challenged before the writ court, is a sale notice issued by the IFCL Limited, New Delhi – respondent No.1. The details of the assets, which are taken over by respondent No.1, W.A.No.1782 of 2020 5 for the purpose of realising the secured debt under the provisions of the Securitisation and Reconstruction of Financial Assets and Enforcement of Securities Interest Act, 2002 are as hereunder: **==> picture [460 x 475] intentionally omitted <==** **----- Start of picture text -----**<br> SL. Name of the Particulars of property Possession<br>No. mortgagor taken over<br>on<br>1 Sh A. Abdul Rasheed Hotel Indraprastha 18/9/2022<br> All that pieces and parcels of Non-<br>Agricultural lands admeasuring 12.05 Ares<br>(29.765 cents], comprised in Re Survey Nos<br>784/36 (old Survey No 1698/3) and 784/37<br>(1697/4-7) at Nedumangad Village,<br>Nedumangad Taluk, Thiruvananthapuram<br>District, in the State of Kerala together with<br>all buildings, structures, erections, fixture and<br>fittings erected/Installed or to be<br>erected/Installed thereon.<br>2 (i) M/s.Concept Reality Undivided Share of Non-agricultural land 18/9/2022<br>India Pvt. Ltd. admeasuring 406.14 cents (equivalent to<br>164.4 Are) out of total extent of 545.81<br>(ii) Smt.Ammukutty George<br>(equivalent to 220.97 Are) comprised in<br>(iii) Sh.K.G.Babukuttan Survey Nos. 275/2-1, 275/2-2, 275/12-1,<br>275/11-1, 275/12 and 275/9, in Attipra<br>(iv) Sh.K.G.Cheriyan<br>Village, Thiruvananthapuram Taluk,<br>Thiruvananthapuram District, in the State of<br>Kerala, together with all buildings, structures,<br>erections etc. constructed and/or to be<br>constructed thereon, both present and future<br>and bounded [consolidated] as under:<br>On or towards Properties of<br>east Cheriychan, Bharathi<br>Amma, Gopi, Balan,<br>Thankappan &<br>Vazhavila & Pullykadu<br>Road<br>**----- End of picture text -----**<br> W.A.No.1782 of 2020 6 **==> picture [460 x 343] intentionally omitted <==** **----- Start of picture text -----**<br> On or towards Don Bosco School Road<br>west<br>On or towards Varukadu Road<br>North<br>On or towards Properties of Chitra Bhanu<br>south & Mohan George<br>3 Sh.A.Abdul Rasheed All that pieces and parcels of lands, 19/9/2019<br>comprised in and forming part of lands<br>admeasuring undivided share of land of 3.99<br>Ares, equivalent to 9.864 Cents, together with<br>all buildings, structures, erections, etc<br>constructed and/or to be constructed thereon,<br>both present and future, and being Apartments<br>4E, SE, 6E, 7E, 8E and 9E, each having a<br>built up area of 2090 sqft, lying and situated<br>at Heera Windfaire, Thaikuddam Bridge,<br>Maradu Village, Vytilla, Kochi, Kerala-<br>682304, in the State of Kerala and bounded as<br>under:<br>On or towards East: PWD Road<br>On or towards West: Property of Inland<br>Water and<br>Transport Corporation<br>On or towards North: Property of K.P Varkey<br>On or towards South: Private Property<br>**----- End of picture text -----**<br> 3. Counter affidavit dated 19[th] August, 2020, has been filed by the Assistant General Manager, on behalf of the Authorised Officer, IFCL Limited, New Delhi – respondent No.1. At paragraph No.6 of the counter affidavit, the 1[st] respondent has contended that there are no ongoing recovery proceedings against the properties of the petitioner/appellant and that the property is not included in the auction sale proceedings initiated by respondent No.1 as per Exhibit P19. W.A.No.1782 of 2020 7 ## 4. Paragraph No.6 of the counter affidavit is extracted hereunder: “6. It is submitted that this Respondent issued sale notice in respect of the property viz Non-agricultural land admeasuring 406.14 cents (equivalent to 164.4 Are) out of total extent of 545.81 (equivalent to 220.97) comprised in Survey Nos 275/21. 275/2-2, 275/12-1, 275/11-1, 275/12 and 275/9, in Attipra Village, Thiruvananthapuram, Taluk, Thiruvananthapuram District, in the State of Kerala owned by M/s. Concept Reality India Pvt. Ltd., Smt. Ammukutty George, S&K CB, Sh.K.G.Cheriyan. It is submitted that there is no ongoing recovery proceedings against the properties of the petitioner and the petitioner's properrty is not included in the auction sale proceedings initiated by the first respondent as per Exhibit P19. The allegations raised by the petitioner that his petitioner's property are kept in auction sale is unwarranted and is done intentionally to disrupt the lawful rights of the first respondent over the secured credit as per the provisions of SARFAESI Act. It is submitted that as per the E-Auction Sale Notice dated 0603-2020 issued by the first respondent, the property of the petitioner is not included in the e-auction sale and as such the petitioner had misrepresented this Hon'ble court in obtaining the stay of the proceedings under SARFEASI Act through obtaining interim order dated 10-02-2020 and 18-02-2020 in the above numbered W.P.(C). The petitioner in the above numbered WP(C) should be imposed costs for misusing the writ jurisdiction of this Hon'ble court and for restraining the first W.A.No.1782 of 2020 8 respondent from conducting e-auction of the properties as part of secured credit which have any relation with petitioner's property as per the authority entrusted by the SARFEASI Act.” 5. Writ court, after considering, what is impugned in the writ petition is only a sale notice, issued under Rule 8(6) of the Security interest (Enforcement) Rules, 2002, and taking note of the decisions of the Hon'ble Supreme Court in **State Bank of India v. Ramakrishnan and Another** [AIR 2018 SC 3876] and **State Bank of Travancore v. Mathew K.C.** [(2018) 3 SCC 85], dismissed the writ petition vide judgment dated 19[th] November, 2020 in W.P.(C) No.3658 of 2020, stating that since an alternate and efficacious remedy is available under the Securitisation and Reconstruction of Financial Assets and Enforcement of Securities Interest Act, 2002, the writ petition cannot be entertained. 6. Being aggrieved by the said judgment, instant writ appeal is filed. 7. Mr. Liju V. Stephan, learned counsel for the appellant, made submissions based on the grounds raised. 8. Per contra Mr.P.A.Gireesh Kumar – learned counsel for respondent No.1, by inviting the attention of this Court to the contents of the counter affidavit extracted supra, submitted that in as much as the properties of the W.A.No.1782 of 2020 9 petitioner/appellant is not included in the auction sale proceedings, as per Exhibit P19 sale notice dated 23.01.2020, there is no locus to challenge the sale notice. 9. Learned counsel also submitted that the recovery proceedings are initiated against some other properties, and therefore, the appellant cannot be said to be an aggrieved person to challenge the proceedings. That apart, it is submitted that he is only a purchaser of a property from the guarantor. 10. We are in agreement with the contention made by the learned counsel for respondent No.1. The proposition "person aggrieved" is considered by the Hon'ble Supreme Court in **Bar Council of Maharashtra v. M.V.Dabholkar and Others** [(1975) 2 SCC 702], wherein it is held that the meaning of the word, 'a person aggrieved' may vary according to the context of the statute and one of the meanings is that a person will be held to be aggrieved by a decision, if that decision is materially adverse to him and normally one is required to establish that one has been denied or deprived of something to which one is legally entitled in order to make one “a person aggrieved”. So also it was held that a person is aggrieved, if a legal burden is imposed on him. W.A.No.1782 of 2020 10 11. Again in **Jasbhal Motibhai Deasi v. Roshibi Kumar, Haji Bashir Ahmed and other** [(1976) 1 SCC 671], the question with respect to the person aggrieved was considered and held as under: **"12.** According to most English decisions, in order to have the locus standi to invoke certiorari jurisdiction, the petitioner should be an “aggrieved person” and, in a case of defect of jurisdiction, such a petitioner will be entitled to a writ of certiorari as a matter of course, but if he does not fulfil that character, and is a “stranger”, the Court will, in its discretion, deny him this extraordinary remedy, save in very special circumstances." **13.** This takes us to the further question: Who is an “aggrieved person” and what are the qualifications requisite for such a status? The expression “aggrieved person” denotes an elastic, and to an extent, an elusive concept. It cannot be confined within the bounds of a rigid, exact and comprehensive definition. At best, its features can be described in a broad tentative manner. Its scope and meaning depends on diverse, variable factors such as the content and intent of the statute of which contravention is alleged, the specific circumstances of the case, the nature and extent of the petitioner's interest, and the nature and extent of the prejudice or injury suffered by him. English courts have sometimes put a restricted and sometimes a wide construction on the expression “aggrieved person”. However, some general tests have been devised to ascertain whether an applicant is eligible for this category so as to have W.A.No.1782 of 2020 11 the necessary locus standi or “standing” to invoke certiorari jurisdiction." ## 12. In **Thammanna v. K.Veera Reddy and Others** [(1980) 4 SCC 62], the Hon'ble Apex Court held as under: " **16.** Although the meaning of the expression ‘person aggrieved’ may vary according to the context of the statute and the facts of the case, nevertheless, normally, “a ‘person aggrieved’ must be a man who has suffered a legal grievance, a man against whom a decision has been pronounced which has wrongfully deprived him of something or wrongfully refused him something, or wrongfully affected his title to something”. As per James, L.J., in Re Sidebothem [(1880) 14 Ch D 458] referred to by this Court in Bar Council of Maharashtra v. M.V. Dabkolkar [(1976) 1 SCR 306 : (1975) 2 SCC 702] and J.N. Desai v. Roshan Kumar [(1976) 1 SCC 671, 681 : AIR 1976 SC 578, 584] " 13. Likewise, the Hon'ble Apex Court has considered the said question in **P.S.R.Sadhanantham v. Arunachalam and Anothe** r [(1980) 3 SCC 141], **Babua Ram and Ors. v. State of U.P. and Ors.** [(1995) 2 SCC 689], **Dr.Duryodhan and Others v. Jitendra Kumar Mishra and Others** [(1998) 7 SCC 273], **Shobha Suresh Jumani v. Appellate Tribunal Forfeited Property and Another** [(2002) 5 SCC W.A.No.1782 of 2020 12 755] and **Ayaaubkhan Noorkhan Pathan v. The State of Maharashtra and Others** [(2013) 4 SCC 465] and reiterated the principles laid down in the earlier judgments. In the light of the above discussion and decisions, both the writ petition and writ appeal, at the instance of the petitioner/appellant, are not maintainable in law. In that view of the matter, we are of the considered opinion that the appellant has not made out any case of jurisdictional error or other legal infirmities on facts also, justifying any interference of the impugned judgment in an intra court appeal, filed under Section 5 of the Kerala High Court Act, 1958. Consequently, the writ appeal is dismissed. Sd/- **S.MANIKUMAR, CHIEF JUSTICE** smv Sd/- **SHAJI P. CHALY, JUDGE**