Renjith v. Ramakrishnan and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE P.BHAVADASAN** **MONDAY, THE 10TH DAY OF FEBRUARY 2014/21ST MAGHA, 1935** ## **Ex.SA.No. 2 of 2012 ()** **----------------------AS.NO. 60/2010 OF DISTRICT COURT, THIRUVANANTHAPURAM DATED 20-10-2011 E.A.NO.205/05 IN E.P.NO.87/2003 IN OS.NO. 204/1993 OF SUB COURT, NEYYATTINKARA DATED 08-03-2010** **--------------------------------** ## **APPELLANT/APPELLANT/CLAIM PETITIONER :** **------------------------------------------------------------------------** **RENJITH, S/O.RAJENDRAN, KURUVITHOTTATHU VEEDU, PAZHAYA UCHAKKADA, KARODE VILLAGE, POWER OF ATTORNEY HOLDER OF SIVANANDA PANICKER, PANAVILAKOM, KADAYARA PUTHEN VEEDU, VENKADAMBU DESOM, KULATHOOR VILLAGE.** **BY ADVS.SRI.T.A.UNNIKRISHNAN SRI.K.S.PRAVEEN** ## **RESPONDENT(S)/RESPONDENTS/COUNTER PETITIONERS :** **------------------------------------------------------------------------------------------** **1. RAMAKRISHNAN,S/O.NARAYANA PILLAI, MURUKAVILASOM BUNGLOW, POTTAKUZHI, PLAMOOTTUKADA, PERANNOOR DESOM,** **CHENKAL VILLAGE, PIN-695 128** **2. SOUTH INDIAN BANK,HEAD OFFICE, THRISSUR, REPRESENTED BY ITS GENERAL MANAGER,PIN-680 001** **3. ASSISTANT GENERAL MANAGER, SOUTH INDIAN BANK LTD, TRIVANDRUM ZONE, THAMPANOOR, THIRUVANANTHAPURAM, PIN-695 014** **4. BRANCH MANAGER, SOUTH INDIAN BANK LTD, PLAMOOTTUKADA BRANCH, NEYYATTINKARA, PIN-695 128** **5. INDIRA DEVI, D/O.PANKAJAKSHY AMMA, POTTIKKADU VEEDU, PERANNOOR,CHENKAL VILLAGE, NOW RESIDING AT PANKAJA NIVAS, JUDGE ROAD, KARAMANA, KEEZHARANNOOR MURI, TRANIMUTTOM PAKUTHY, THIRUVANANTHAPURAM TALUK, PIN-695 002** **R2 TO R4 BY ADV. SRI.A.KUMAR R5 BY ADV. SRI.THIRUMALA P.K.MANI** **THIS EXECUTION SECOND APPEAL HAVING BEEN FINALLY HEARD ON 10-02-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **sts** ## **P. BHAVADASAN, J.** - - - - - - - - - - - - - - - - - - - - - - ## Ex.S.A. No. 2 of 2012 - - - - - - - - - - - - - - - - - - - - - - Dated this the 10[th] day of February, 2014. ## **JUDGMENT** Aggrieved by the order dated 8.3.2010 by the Sub Court, Neyyattinkara in E.A. 205 of 2005 in E.P. No. 87 of 2003 in O.S. No. 204 of 1993, by which the said court dismissed the claim petition filed by the claim petitioner, he filed an appeal as A.S. 60 of 2010 before the District Court, Thiruvananthapuram. The District court found no reason to interfere and confirmed the decision of the Sub Court. Aggrieved by the said order, this second appeal has been preferred. 2. At the time of admission, this Court has framed the following substantial question of law: “Are not the courts below wrong in denying title and possession of the appellant, in spite of production of Ext.A2 deed.” Ex.S.A.2/2012. 2 3. Now on to the facts. The second respondent Bank extended a loan to one Narayana Panicker on deposit of the title deed with the Bank. On his failure to repay the loan, the Bank filed a suit for realization of money. The suit was decreed and the property was put to sale and the decree holder purchased the property. The sale was confirmed and when delivery was attempted to be taken, the appellant Sivananda Panicker, through his power of attorney holder, filed a claim petition seeking a declaration that the property is not liable for the debts of the 1[st] counter petitioner and to set aside the sale. 4. The short contention put forward was that the property was mortgaged in favour of the claim petitioner in the year 1967 for a period of six years. The said mortgage was not redeemed and now the redemption is hit by limitation and therefore there was no subsisting title with the mortgagor which could be brought to sale. Ex.S.A.2/2012. 3 5. The parties went to trial. Initially the claim petitioner adduced evidence through the power of attorney holder and the court found that the materials produced before the court is insufficient to uphold the claim and therefore dismissed the claim petition. The matter was carried in appeal by the claimant as A.S.209 of 2007 before the District Court, Thiruvananthapuram. The lower appellate court as per judgment dated 25.8.2009 allowed the appeal and remanded the matter to the trial court for fresh consideration affording the claimant an opportunity to adduce further evidence. 6. After remand, things did not improve. The power of attorney examined himself as P.W.1 and had produced Ext.A2 mortgage deed based on which the claimant had laid the claim. P.W.2 was also examined to prove that the mortgagee was in possession of the property. 7. The trial court found the evidence of P.W.1, the power of attorney, too insufficient to prove Ext.A2 document Ex.S.A.2/2012. 4 and observed that even after remand things did not improve and the matter stood the same and dismissed the claim petition. The matter was carried in appeal and the appellate court confirmed the order of the trial court. 8. Shri. T.A. Unnikrishnan learned counsel appearing for the appellant, contended before this Court that in the light of Ext.A2 which is a registered document, nothing remains to be considered and the courts below ought to have considered the claim petition and should not have rejected the same. The mortgage is of the year 1967 and the mortgage did not subsist and the Bank had no right to proceed against the property as it did not belong to the judgment debtor. 9.. Learned counsel appearing for the second respondent on the other hand contended that the loan was extended on consideration of the certificate of purchase produced by the persons who had taken the loan and there is nothing to show that there was a subsisting mortgage as Ex.S.A.2/2012. 5 claimed by the claimant. Though opportunities were given to the claimant to adduce fresh evidence, he did not utilize the same, so the claim that he was deprived of the opportunity to adduce evidence cannot be accepted. It is further contended that mere production of a document does not improve the case unless Ext.A2 is proved in accordance with law. The evidence of P.W.1, the power of attorney holder, cannot substitute the evidence of the claimant himself. Both the courts below came to the conclusion that the evidence is insufficient to uphold the claim of the claimant. 10. After having heard learned counsel for the appellant and the learned counsel for the second respondent Bank, it would appear that the courts below were justified in coming to the conclusion that there was no sufficient evidence produced at the time of trial of the claim petition. But this Court while admitting the appeal was concerned with the fact that the courts below may not be justified in holding that the Ex.S.A.2/2012. 6 evidence of P.W.2 is not sufficient to prove Ext.A2 which is a registered document. Any how, the evidence of P.W.2 cannot substitute that of the principal. Any authority is required, that is provided by the decision reported in S. Kesari Hanuman Goud v. Anjum Jehan (AIR 2014 SC (Civil) 153). The courts below were therefore justified in coming to the conclusion that the evidence of P.W.2 cannot be a substitute for claimant's evidence. 11. Learned counsel for the appellant pointed out that the claimant was labouring after heart ailment and that precluded him to adduce evidence. The fact remains that neither before the lower appellate court or before this Court there is any specific ground has been raised by the claimant that he has been deprived of an opportunity to adduce evidence. 12. However, the fact remains that there is a registered document as Ext. A2 which is of the year 1967. It is Ex.S.A.2/2012. 7 difficult to believe that it was created for the purpose of this case. Whether the consequence of that could have on the outcome of the claim petition is a different question. The mortgage is for a period of six years and there is a contention by the learned counsel for the second respondent Bank that at the time of sale rights were available to the mortgagee which could be brought to sale. 13. Considering the rival contentions, it is felt that an opportunity can be given to the appellant to adduce evidence provided he deposits Rs.3,00,000/- before the court below within a period of one month from today. In the result, this appeal is allowed and the orders of the courts below are set aside and the matter is remanded to the trial court for fresh disposal in accordance with law on condition that he deposits Rs.3,00,000/- within one month from today. Both parties are at liberty to adduce further evidence. The parties shall appear before the trial court on Ex.S.A.2/2012. 8 11.3.2014 and the trial court may make every endeavour to dispose of the matter within a period of six months from the date of receipt of a copy of this judgment. P. BHAVADASAN, JUDGE sb.