Oommen K. Eapen v. Venugopal R and The Catholic Syrian Bank, Kottayam Branch

OP(C) NO. 944 OF 2022 1 # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **MONDAY, THE 13[TH] DAY OF JUNE 2022 / 23RD JYAISHTA, 1944 OP(C) NO. 944 OF 2022** **AGAINST THE ORDER/JUDGMENT IN OS 484/2021 OF PRINCIPAL MUNSIFF COURT , KOTTAYAM** ## **PETITIONER/S:** OMMEN K. EAPEN AGED 56 YEARS OMMEN K. EAPEN, S/O EAPEN, AGED 56 YEARS, KOCHUPARETTU HOUSE, ERAVINALLOOR P.O., ERAVINALLOOR KARA, PUTHUPALLY VILLAGE, KOTTAYAM TALUK, KOTTAYAM DISTRICT , PIN - 686011 BY ADVS. ALEX.M.SCARIA NISHA GEORGE SARITHA THOMAS ALEN J. CHERUVIL ## **RESPONDENT/S:** 1 SRI. VENUGOPAL.R AGED 55 YEARS AGED ABOUT 55 YEARS, S/O RAMACHANDRA REDDIAR, AIYAPPAS, PULICKAMATTOM JUNCTION, 15 IL KADAVU ROAD, NEAR EXCELSIOR SCHOOL, VELLOOR VILLAGE, KOTTAYAM TALUK, KOTTAYAM DISTRICT, PIN - 686003 2 THE CATHOLIC SYRIAN BANK KOTTAYAM BRANCH, BAKER JUNCTION, MUTTAMBALAM VILLAGE, KOTTAYAM TALUK, KOTTAYAM DISTRICT , REPRESENTED BY ITS BRANCH MANAGER, PIN - 686001 BY ADVS. Abraham George Jacob Madhu Radhakrishnan Radhakrishnan C.MURALIKRISHNAN (PAYYANUR)(K/145/1997) OP(C) NO. 944 OF 2022 2 AKSHAY R(K/001536/2019) P.I.RAHEENA(K/283/2015) NELSON JOSEPH(K/380/2007) M.D.JOSEPH(K/839/2008) DEEPAK ASHOK KUMAR(K/1624/2018) THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 13.06.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP(C) NO. 944 OF 2022 3 ## **JUDGMENT** The original petition is filed, inter alia, to direct the Court of the Munsiff, Kottayam to consider and dispose of I.A.No.1/2021 in O.S.No.484/2021 (Ext.P13), within a time frame. 2. Pursuant to the order passed by this Court on 06.06.2022, the learned Munsiff has by communication dated 07.06.2022 informed this Court that, Ext.P13 can be disposed of, within a period of three months. 3. Heard; Sri. George Poonthottam, the learned Senior Counsel appearing for the petitioner, Sri. Abraham Jacob, the learned Counsel appearing for the 1[st] respondent and Sri. Madhu Radhakrishanan, the learned Counsel appearing for the 2[nd] respondent. 4. Sri. George Poonthottam reiterated the contentions in the original petition and prayed that the Court below may be directed to consider and dispose of OP(C) NO. 944 OF 2022 4 Exts.P13 and P23, as expeditiously as possible, in view of the urgency in the matter. The above submission was vehemently opposed by Sri. Madhu Radhakrihsnan, who contended that in view of the inter-party judgment of this Court in WP(C) No.7181/2022 (Ext.R2(a)), there is no necessity to grant any interim relief to the petitioner. Nonetheless, he pointed out that the 2[nd] respondent has also filed I.A.No.6/2022 (Ext.R2(b)), in the suit, to reject the plaint in view of Section 34 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI Act) and the Limitation Act, 1963. He relied on the decision of the Honourable Supreme Court in **Electrosteel Castings vs. UV Asset Reconstruction Company Limited and** **others** [(2022) 2 SCC 573), wherein, the Honourable Supreme Court has empathetically held that the mere usage of the word fraud/ fraudulent, without there being specific particulars pleaded with regard to fraud, cannot OP(C) NO. 944 OF 2022 **==> picture [6 x 9] intentionally omitted <==** get over the bar under Section 34 of the SARFAESI Act. Hence, he prayed that the original petition may be dismissed. 5. On an appreciation of the pleadings and materials on record, and after hearing the learned counsel appearing on both sides, especially the fact that the 2[nd] respondent themselves have filed Ext.R2(b) before the Court below, to reject the plaint, I am of the definite view that the Court below is directed to consider Exts.P13 and R2(b) applications within a time frame, which would render complete justice to both sides. On the other hand if Ext.P13 is not directed to be considered, it may render the suit as infructuous. In the result, in exercise of the supervisory jurisdiction of this Court under Article 227 of the Constitution of India, I allow the original petition by directing the Court of the Munsiff, Kottayam to consider and dispose of Exts.P13 and R2(b), in accordance with OP(C) NO. 944 OF 2022 6 law, as expeditiously as possible and at any rate within a period of one month from the date of receipt of a certified copy of this judgment. It is made clear that, the consideration of I.A.No.4/2022 in O.S.No.484/2021 (Ext.P23) shall be done only after a decision is taken on Exts.P13 and R2(a). The undertaking of the learned counsel for the 2[nd] respondent dated 06.06.2022 made before this Court, that no coercive proceedings shall be initiated, shall continue for a period of ten days after the passing of orders in Exts.P13 and R2(b) as directed above. The original petition is ordered accordingly. Sd/- **C.S.DIAS, JUDGE** rkc/13.06.22 OP(C) NO. 944 OF 2022 7 ## **APPENDIX OF OP(C) 944/2022** PETITIONER'S EXHIBITS |Exhibit P1|TRUE COPY OF PARTITION DEED BEARING NO.| |---|---| ||1153/1997 OF PUTHUPPALLY S.R.O.| |Exhibit P2|TRUE COPY OF THE SALE DEED NO. 1846/2009| ||DATED 25/11/2009.| |Exhibit P3|TRUE PHOTOGRAPHS SHOWING THE PRESENT| ||CONDITION OF THE RESIDENTIAL BUILDING IN| ||EXHIBIT-P1 PROPERTY.| |Exhibit P4|TRUE PHOTOGRAPHS OF THE MARRIAGE| ||CEREMONIES OF THE PETITIONER'S DAUGHTER.| |Exhibit P5|TRUE COPY OF THE MARRIAGE INVITATION| ||CARD, IN RESPECT OF MARRIAGE OF THE| ||DAUGHTER OF THE PETITIONER.| |Exhibit P6|TRUE COPY OF THE ELECTRICITY BILL OF THE| ||PETITIONER DATED 18.02.2021 ISSUED TO| ||THE PETITIONER BY THE KSEB LTD.| |Exhibit P7|TRUE COPY OF THE RATION CARD OF THE| ||PETITIONER.| |Exhibit P8|TRUE COPY OF THE GAS CONNECTION BILL| ||DATED 19/01/2022 OF THE PETITIONER.| |Exhibit9|TRUE COPY OF THE AADHAR CARD OF THE| ||PETITIONER.| |Exhibit P10|TRUE COPY OF THE AADHAR CARD OF THE| ||PETITIONER'S WIFE.| |Exhibit P11|TRUE COPY OF THE LAWYER NOTICE DATED| ||15/03/2021 ISSUED BY THE PETITIONER TO| ||THE 1ST RESPONDENT.| |Exhibit P12|TRUE COPY OF THE PLAINT IN O.S. NO.| ||484/2021 DATED 18/09/2021 BEFORE THE| OP(C) NO. 944 OF 2022 8 MUNSIFF'S COURT, KOTTAYAM. - Exhibit P13 TRUE COPY OF THE INJUNCTION APPLICATION I.A. NO. 1/2021 IN O.S. NO. 484/2021 DATED 18/09/2021 FILED BY THE PETITIONER BEFORE THE MUNSIFF'S COURT, KOTTAYAM. - Exhibit P14 TRUE COPY OF THE COMMISSION REPORT FILED BY THE ADVOCATE COMMISSIONER. - Exhibit P15 TRUE COPY OF THE OBJECTION FILED BY THE 2ND RESPONDENT IN I.A. NO. 1/2021 IN O.S. NO. 484/2021 BEFORE THE MUNSIFF'S COURT, KOTTAYAM. - Exhibit P16 TRUE COPY OF I.A. NO. 1/2022 FILED BY THE PETITIONER IN O.S. NO. 484/2021 DATED 04/02/2022. - Exhibit P17 TRUE COPY OF THE MC FILED BY THE 1ST RESPONDENT IN IN O.S. NO. 484/2021. - Exhibit P18 TRUE COPY OF THE JUDGMENT OF THE HON'BLE SUPREME COURT IN MARDIA CHEMICAL CASE REPORTED IN 2004 (4) SCC 311 DATED 08/04/2004. - Exhibit P19 TRUE COPY OF THE JUDGMENT IN W.P.(C) NO. 18863/2012 DATED 10/09/2012 OF THIS HON'BLE COURT. - Exhibit P20 TRUE COPY OF W.P.(C) NO. 7181/2022 DATED 03/03/2022 WITHOUT EXHIBITS FILED BY THE PETITIONER BEFORE THIS HON'BLE COURT. - Exhibit P21 TRUE COPY OF THE INTERIM ORDER DATED 18/03/2022 IN W.P.(C) NO. 7181/2022 OF THIS HON'BLE COURT. - Exhibit P22 TRUE COPY OF THE STATEMENT DATED 18/05/2022 FILED BY THE 1ST AND 2ND RESPONDENTS IN W.P.(C) NO. 7181/2022 OF THIS HON'BLE COURT. OP(C) NO. 944 OF 2022 9 Exhibit P23 TRUE COPY OF THE AMENDMENT APPLICATION I.A. NO. 4/2022 DATED 30/05/2022 IN O.S. NO.484/2021 BEFORE THE HON'BLE MUNSIFF'S COURT, KOTTAYAM. Exhibit P24 TRUE COPY OF THE ON-LINE CASE STATUS REPORT DOWNLOADED FROM E-COURT SITE. RESPONDENT EXHIBITS Exhibit R2(a) True copy of the Judgment in WPC No. 7181/2022 by this Hon'ble Court Exhibit R2(b) true copy of the I.A No. 6/2022 filed in OS No. 484 /2021