BHANUMATHY USHA Vs. JAMMU & KASHMIR BANK LTD.

JUDGEMENT

(1.) Being faced with proceedings under Section 14 of the Secularization and Reconstruction of Financial Assets and Enforcement of Security Interest Act , 2002 (' SARFAESI Act ' for short), initiated by the 1 st respondent before the Chief Judicial Magistrate, Thiruvananthapuram, against the properties of the petitioners, they are before this Court seeking the following reliefs:-

(2.) The eventful factual backdrop is outlined by the available pleadings. It would portray that the petitioners herein and the 4 th respondent are siblings and they are the children of Smt.Janaky Banumathy, who died intestate in the year 1998. Bhanumathy owned several parcels of land and buildings in her name which included property having an extent of 8.5 cents comprised in Sy. No 93/14-1 of Attipra Village. After the death of the mother, a suit for partition was instituted by the 1st petitioner arraying the rest of the sharers as defendants before the Additional Munsiff Court, Thiruvananthapuram as O.S. No.139 of 2000. By judgment dated 30.06.2004, a copy of which is produced as Exhibit P2, a preliminary decree was passed holding that the 1 st petitioner was entitled to 1/5th share out of the 8 1/2 cents of land comprised in Sy.No 93/14-1 of Attipra Village and that she was held entitled to separate possession of the same. On 31.5.2005, a supplementary decree was passed in favour of petitioners 2 and 4 in respect of their 1/5 th share over the same item of property. It is pertinent to note that during the pendency of the suit, the learned Munsiff, on an application filed by the plaintiff, had passed an order of injunction restraining the defendant/the 4th respondent herein from creating any charge or from making any construction in the property. As is evident from Exhibit P4 report of the Commissioner Advocate, who was appointed by the Civil Court to separate the property by metes and bounds, the 4th respondent had right only over 1 cent of property, left over as her share. Later, final decree was passed in accordance with the preliminary decree and the same has become final.

(3.) After the preliminary decree was passed, the 4th respondent, by Exhibit P5 document dated 11.02.2005 assigned 2.62 Ares comprised in Sy.No.93/14/1 of Attipra Village to the 3 rd respondent and in clear violation of the order of injunction and also the terms of the preliminary decree. Unquestionably, the 4th respondent had no right to assign the entire property as she only had a fractional interest on the date of assignment.