Subha S. Nair V. Union Bank of India, Alappuzha Branch and P. Shyam alias Shyamraj and Narayanan Raveendran Tagore

OP (DRT)/329/2022

AI Insights

The case involves Subha S. Nair, the petitioner, whose property was sold by the recovery officer of the Debt Recovery Tribunal-II, Ernakulam, to recover amounts due under a recovery certificate from O.A No.322 of 2009. The petitioner contested the legality of the auction, claiming it was conducted improperly. The third respondent, who purchased the property, had already remitted the due amount and registered the sale. The petitioner filed a petition under Rule 87 of the Second Schedule of the Income Tax Act to set aside the sale, alleging delays by the auction purchaser in accepting notices. The court found that the auction purchaser had already responded to the recovery officer and had filed objections to the petition. Consequently, the court directed the recovery officer to expedite the hearing of the petitioner's application.

• Counselvise Citation: [2022] 140 COUNSELVISE.COM (IT) 699671 (HC-KERALA)
• Appeal Type: Others
• Pronouncement Date: 19-10-2022
• Assessment Year: misc
• Laws Referred To: Income Tax Act
• Result in Favour of: Partly Allowed
• Court: HIGH COURT
• Department Lawyers: ABU THALAMATTATHIL; AJU MATHEW
• Assessee Lawyers: T K VIPINDAS; K M MUHAMMED HUSSAIN
• Keywords: Auction; Debt Recovery; Income Tax Act; Recovery Certificate; Rule 87
• Section: 87; 87

Judgement Text

"IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE GOPINATH P. WEDNESDAY, THE 19TH DAY OF OCTOBER 2022 / 27TH ASWINA, 1944 OP (DRT) NO. 329 OF 2022 I.A.No.101/2022 IN DRC.NO.84/2019 IN TA NO.17/2016 IN OA 322/2009 OF DEBT RECOVERY TRIBUNAL, ERNAKULAM PETITIONER: SUBHA.S.NAIR AGED 52 YEARS, W/O. MOHANACHANDRAN NAIR, RESIDING AT DEVI MANDIRAM, PAZHAVEEDU.P.O, ALAPPUZHA, PRESENTLY RESIDING AT TC.NO.29/1011, KOZHIYATTIL LANE, PETTA, THIRUVANANTHAPURAM , PIN – 695 024 BY ADVS. T.K.VIPINDAS K.M.MUHAMMED HUSSAIN RESPONDENTS: 1 UNION BANK OF INDIA ALAPPUZHA BRANCH, KABEER PLAZA, MULLAKKAL, ALAPPUZHA DISTRICT, REPRESENTED BY ITS MANAGER., PIN – 688 011. 2 P.SHYAM ALIAS SHYAMRAJ PROPRIETOR, M/S. ARJUNA CONSTRUCTIONS,, MURUKALAYAM, PUNNAPRA.P.O., NOW AT ARJUNAM, THIRUVAMBADI.P.O., ALAPPUZHA, , PIN – 688 002. 3 NARAYANAN RAVEENDRAN TAGORE, S/O. N.R.TAGORE, KAVERI HOUSE, PAZHAVEEDU.P.O, ALAPPUZHA, PIN – 688 009 BY ADVS. ABU MATHEW THALAMATTATHIL AJU MATHEW(K/637/2004) O.P.(DRT)No.329/2022 2 OTHER PRESENT: ADV. A S P KURUP (SC) THIS OP (DEBT RECOVERY TRIBUNAL) HAVING COME UP FOR ADMISSION ON 19.10.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: O.P.(DRT)No.329/2022 3 JUDGMENT This original petition was filed by the petitioner whose property was brought to sale by the recovery officer attached to the Debt Recovery Tribunal-II, Ernakulam for recovery of amounts due under a recovery certificate issued by the Debt Recovery Tribunal in O.A No.322 of 2009. 2. It was the case of the petitioner that the auction was conducted in an illegal manner. The 3rd respondent purchased the property in auction has remitted the entire amount due and the sale certificate has also been registered and mutation has also be been effected. The petitioner approached this Court stating that despite the petitioner filing a petition under Rule 87 of the Second Schedule of the Income Tax Act, to set aside the sale, the auction purchaser is delaying the proceedings by not accepting the notice. 3. When this matter is taken up for consideration today, it is the submission of the learned counsel appearing for the 3rd respondent/auction purchaser that he has already entered appearance before the recovery officer and has filed his objection to the petition filed by the petitioner under Rule O.P.(DRT)No.329/2022 4 87 of the Second Schedule of the Income Tax Act. 4. Taking into consideration the above facts, I am of the view that this original petition need not be kept pending in this Court and it can be disposed of directing that the petition filed by the petitioner under Rule 87 of the Second Schedule of the Income Tax Act, before the recovery officer shall be heard and decided by the recovery officer attached to the Debts Recovery Tribunal-II, Ernakulam, without further delay and with notice to the petitioner, the bank and the auction purchaser. 5. Accordingly this original petition is disposed of directing the recovery officer attached to the Debts Recovery Tribunal-II, Ernakulam, to consider and pass orders on Ext.P6 application after affording an opportunity of hearing to the petitioner, to the respondent bank and to the 3rd respondent/auction purchaser within a period of two months from the date of receipt of a certified copy of this judgment. All interim orders issued by this Court will stand vacated. Sd/- GOPINATH P. ats JUDGE O.P.(DRT)No.329/2022 5 APPENDIX OF OP (DRT) 329/2022 PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE ORDER IN I.A.NO.1965/2014 IN O.A.322/2009 BEFORE THE DEBT RECOVERY TRIBUNAL, ERNAKULAM Exhibit P2 TRUE COPY OF THE JUDGMENT IN O.P(DRT) 46 OF 2016 DATED 1-12-2016 Exhibit P3 THE TRUE COPY OF THE NOTICE ISSUED BY THE RECOVERY OFFICER, DEBT RECOVERY TRIBUNAL-II, ERNAKULAM TO THE PETITIONER DATED 7-1-2022 Exhibit P4 TRUE COPY OF THE JUDGMENT IN O.P.(DRT) NO.239/2022 DATED 17-03-2022 BEFORE THIS HON'BLE COURT Exhibit P5 TRUE COPY OF THE NOTICE DATED 29-03-2022 ISSUED FROM THE OFFICE OF THE RECOVERY OFFICER, DEBT RECOVERY TRIBUNAL-II, ERNAKULAM Exhibit6 TRUE COPY OF THE I.A.101/2022 IN DRC 84/2019 IN TA. 17/2016 ON THE FILE OF RECOVERY OFFICER OF DEBT RECOVERY TRIBUNAL-II, ERNAKULAM Exhibit P7 THE TRUE COPY OF THE PHOTOGRAPHS OF ALTERATION BEING MADE TO THE PROPERTY Exhibit P8 TRUE COPY OF THE POSTAL COVER ISSUED TO THE 3RD RESPONDENT RETURNED AS \"ADDRESSEE REFUSED\" RESPONDENT EXHIBITS Exhibit R3(a) True copy of the E-mail communication dated 20-04-2022 issued by the Recovery Officer, Debt Recovery Tribunal No.II, Ernakulam Exhibit R3(b) True copy of the draft sale certificate dated 07-07-2022 issued by the Recovery Officer, Debt Recovery Tribunal No. II, Ernakulam. O.P.(DRT)No.329/2022 6 Exhibit R3(c) True copy of the order of delivery of immovable property to the certified purchaser dated 27-07-2022 issued by the Recovery Officer, Debt Recovery Tribunal No. II, Ernakulam Exhibit R3(d) True copy of the registered Sale Certificate No. 2755 of 2022 of SRO Alappuzha "