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IN THE HIGH COURT OF KERALA AT ERNAKULAM
VIJU ABRAHAM
K.R. Ushasree W/o B. Mohanchandran Nair – Appellant
Versus
Indian Bank, Rep. by Branch Manager, Kollam Branch – Respondent
| Table of Content |
|---|
| 1. auction process and sale details. (Para 1) |
| 2. claim for compensation due to possession issues. (Para 2) |
| 3. bank's obligation to deliver full possession. (Para 3 , 4) |
| 4. court analysis of bank's liability and legal precedents. (Para 7 , 8 , 9 , 10 , 11 , 12) |
| 5. court's directive for payment and interest. (Para 13) |
JUDGMENT :
W.P. (C) No. 41671 of 2022
“Admit. Standing counsel takes notice for respondents 1 and 2. Government Pleader takes notice for the 3rd respondent. The learned counsel for the bank submits that the balance property is in the possession of somebody else and the bank is taking appropriate proceedings to see that the balance property is also taken possession of and handed over to the petitioner. The respondents shall take appropriate steps in this regard within 2 weeks."
i. To issue a writ of mandamus or other appropriate writ, order or direction directing the respondents 1 and 2 to identify and to put the petitioner in physical possession of 22.645 cents of land out of the land sold as per Ext.P1 sale certificate forthwith;
iii To declare that petitioner is entitled to get physical possession of the entire land sold as per Exhibit P1 Sale Certificate and r
Secured creditors must fully deliver the auctioned property and disclose material defects; failure to do so incurs liability for damages, including refunds with interest.
The bank retains the right to recover debts through mortgaged properties even if the borrower sells the property to a third party, as established under the SARFAESI Act, 2002.
Seller is bound to disclose any buyer any material defect in property of which buyer is not aware and which buyer could not ordinarily discover.
Point of Law - It is therefore held that the secured creditor, after service of notice under Rule 8 of the Rules, 2002, is entitled to take symbolic possession of the secured assets so as to sale suc....
Burden was on the petitioner to establish, on the basis of firm pleadings and cogent evidence that the respondent-Bank had actively concealed or misrepresented any material fact from the petitioner w....
The right of redemption under SARFAESI Act is extinguished after the issuance of a sale certificate, rendering claims by lessees during such proceedings legally unsustainable.
A secured creditor retains rights over a property until actual possession is transferred, despite a sale certificate being issued to an auction buyer, as affirmed by the court.
A secured creditor loses its rights under the SARFAESI Act upon the auction of mortgaged property, precluding further claims for possession under the same Act.
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