K. R. USHASREE Vs. INDIAN BANK

JUDGEMENT

(1.) It is averred that petitioner is the successful bidder in an auction conducted by the 2nd respondent invoking the provisions of Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (for short 'the SARFAESI Act') in respect of 3 Acres 20 cents of land and building situated therein comprised in old Survey Nos.9658, 9859, 9608 and 9614 of Kollam East Village (Re.Survey No.3 of block 68). The property was originally owned by one N.Sundareswaran, who availed financial assistance from the 1 st respondent Bank mortgaging the above mentioned properties and when he committed default, the bank invoked the provisions of the SARFAESI Act and sold the properties in auction, after publishing notice for the proposed sale in Hindu and Mathrubhoomi daily dtd. 18/6/2008. The petitioner participated in the auction and he was the highest bidder and accordingly, petitioner's bid was accepted by the bank. The sale was confirmed in favour of the petitioner for a bid amount of Rs.4,45,50,000.00. The petitioner remitted the bid amount and Ext.P1 sale certificate was issued in his favour. As per Ext.P1 sale certificate, the property is described as per the sale notification, as 3 acres and 20 cents of land. The two liabilities mentioned in the encumbrance certificate were settled at the instance of the petitioner. After getting sale certificate, it was noticed that the property sold in auction was not measured in full extent of 3 acres and 20 cents of land. The petitioner requested respondents 1 and 2 to take steps to handover physical possession of the land in full. Accordingly, the respondents by their letter dtd. 23/12/2008 requested the Tahsildar/Village Officer, Kollam to identify the property with boundaries. The Village officer by Ext.P2 replied that out of the 3 acres and 20 cents of land sold, he could identify only 1 Hectre 18 Ares 16 Sq.M equivalent to 291 cents 855 Sq.links. As such there is a shortage of 28.145 cents of land out of 3 acres 20 cents of land sold to the petitioner by the 2nd respondent bank. The petitioner submits that during the pendency of the legal proceedings in the matter, some portion of the land was encroached by the neighbouring landlords and a certain portion was illegally sold by the previous owner to the 3rd party while the mortgage was subsisting in favour of the 1 st respondent bank. The petitioner repeatedly requested respondents 1 and 2 to take steps to identify the balance portion of the property and in the meanwhile, to register the identified portion of the property, out of the balance portion of land to be identified. Alleging inaction on the part of the bank, the petitioner has approached this Court filing W.P.(C).No.7740 of 2009. The said writ petition was disposed of as per Ext.P3 recording the submission of respondents 1 and 2 that they have no objection in the registration in relation to 291.855 cents and directing them to complete the registration in respect of 291.855 cents in accordance with law and further, directed respondents 1 to 3 to expedite the process of identifying the balance extent out of 3.20 acres of land. In compliance with the direction of this Court, the 2 nd respondent executed the sale deeds in favour of the petitioner in respect of the identified portion of 291.855 cents of land by way of 7 sale deeds. In spite of the specific direction in Ext.P3, no steps were taken for identifying the 28.145 cents of land and registering the balance portion to the petitioner and thereupon the petitioner was constrained to approach this Court filing Contempt of Court case No.422 of 2010. In the said contempt petition the 3 rd respondent - Tahsildar filed Ext.P5 affidavit intimating that they have identified the land which is currently in the possession of the neighbouring land owner, SNDP Sagha Yogam, where Sree Krishnaswami Temple is situated. Accordingly this Court dropped the contempt proceedings without prejudice to the rights of the parties. Thereupon the petitioner approached this Court filing W.P(C) No.19633 of 2011 seeking a direction to respondents 1 and 2 to take physical possession of the entire 3 acres 20 cents of land sold as per Ext.P1 Sale Certificate and also for directing respondents 1 and 2 to take appropriate steps under Sec. 14 of the SARFAESI Act for taking physical possession of the 28.145 cents of land found short out of 3 acres 20 cents and to give physical possession to the petitioner. This Court passed an interim order on 27/7/2011, as follows.:

(2.) The petitioner relies on Ext.P5 affidavit filed by the Additional Tahsildar, Kollam, who is the 3 rd respondent in Con.Case No.422 of 2010 wherein it is admitted that the Taluk Surveyor was successful in identifying the land which has to be handed over to the petitioner by the Bank, but as per the resurvey records that land is currently in the possession of SNDP Sagha Yogam, and the same has well defined boundary with compound walls constructed about 25 years ago, where the Sree Krishnaswami Temple is situated. On the basis of the same it is the contention of the petitioner that the bank is not in a position to hand over the physical possession of an extent of 22.645 cents of land, even after more than 17 years, which form part of 3 Acres 20 cents of land, for which sale consideration has already been paid by the petitioner and therefore, a direction may be issued to the bank to pay the petitioner the proportionate cost of that property amounting to Rs.31,36,117.00 with interest at the rate of 12% per annum from 29/9/2008. The petitioner relies on the judgment in Leelamma Mathew v. Indian Overseas Bank [2022 (6) KLT 424 (SC)] and the judgment in Ravi Kumar v. UCO Bank [] in support of his contentions.

(3.) A detailed counter affidavit has been filed by respondents 1 and 2 wherein it is stated that pursuant to the direction issued by this Court, the proceedings before the Chief Judicial Magistrate were continued and the Advocate Commissioner submitted a report before the Chief Judicial Magistrate and as per Ext.R1(g) order. The petition filed under Sec. 14 of the SARFAESI Act was closed based on the report of the Advocate Commissioner and it is reported that the possession of the property has been handed over to the bank. It is also contended that it is for the petitioner to challenge the order of the Chief Judicial Magistrate by filing a fresh writ petition.