AI Structured Summary
Not yet generated for this judgment
Judgment
J. Chelameswar, C.J.—The appeal is preferred by the unsuccessful writ Petitioner in W.P.(C) No. 35273 of 2008 aggrieved by judgment dated 04.12.2008.
The said writ petition was dismissed at the admission stage. From the judgment under appeal it appears that the only issue raised and argued before the learned Judge was whether the District Co-operative Bank is entitled to avail the benefit of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI Act). By the judgment under appeal, a learned Judge of this Court held that the issue stands covered by an earlier judgment of this Court in A.P. Varghese and Ors. v. Kerala State Co-operative Bank Limited and Ors. 2008 (1) KHC 513 and therefore dismissed the writ petition at the admission stage. Hence the appeal.
The learned Counsel for the Appellant, Sri. T. Ravikumar submitted that a batch of appeals are already admitted and pending, wherein the correctness of the principles laid down in the abovementioned judgment of this Court in A.P. Varghese''s case (supra) is under challenge. In the normal course in view of the said statement this appeal is also required to be admitted. However, the Appellant filed I.A. No. 186 of 2011 praying that four additional Respondents be impleaded as Respondents to the appeal. The application is filed with the prayer as follows:
For the reasons stated in the accompanying affidavit, it is prayed that this Hon''ble Court may be pleased to implead the following persons as additional 6th, 7th, 8th and 9th Respondents in the Writ Appeal: (6th) K. Biju, Krishna, Ramapuram,
Thannimoodu P.O., PIN-695 123.
(7th) K. Surendran, Kadayaravila,
Puthenveedu, Ramapuram-695 126.
(8th) The Director General of Police,
Thiruvananthapuram-695 001.
(9th)The Superintendent of Police,(Rural),
Thiruvananthapuram - 695 001.
Obviously, the abovementioned four Respondents are not parties to the abovementioned writ petition. The reason given for such a relief is contained in paragraph 3 of the affidavit in support of the application which reads as follows:
The bank taking the assistance of some people took me into custody and forced me to transfer my property in the name of K. Biju, Krishna, Ramapuram, Thannimoodu P.O., PIN-695 123. He was actively assisted by K. Surendran, Kdayaravila, Puthenveedu, Balaramapuram. K. Biju immediately paid the amount due to the bank and got the property transferred in his name.
It appears from the above pleading that the Appellant had transferred the property in favour of the proposed additional Respondents 6 and 7. Though the Appellant alleges that such a transfer came to be made under, what can be described in law as ''duress'', as can be seen from the above extract that the pleadings are absolutely vague and imprecise. Assuming for the sake of argument that the question whether the transfer made by the Appellant is vitiated under law either because of the alleged duress or some other reason, such a question requires establishment of facts which in turn requires evidence to be recorded. Such an exercise is not normally undertaken in a proceeding under Article 226 of the Constitution of India.
In view of the allegation in the above extracted pleading that the transfer of property came to be achieved by a process other than the one contemplated under SARFAESI Act, in our opinion, nothing survives for examination in the instant writ appeal.
We are informed at the Bar by the learned Counsel for the Appellant that he initiated appropriate proceedings challenging the transfer referred to earlier. Reserving his liberty to pursue the same, the Writ Appeal is dismissed.