In this petition under Article 227 of the Constitution of India, the reliefs sought for are as follows. (a) To call for the records in the sale of property to the extent of 12 cents with two storied building in re-survey No.81/5/1 (old survey No.393) of Edava Village by Ext.P4 Sale Certificate and quash Ext.P4 sale certificate and direct the parties to conduct public auction with notice to the petitioner.
(b) To issue appropriate direction or order which deem fit for the facts and circumstance of the case to declare the sale of the property while the attachment order passed by the Civil Court in I.A.No.915/2007 in O.S.No.138/07 passed by the Sub Court, Attingal and the sale amounts to contempt of the order of attachment.
2. The petitioner claims to be the decree holder in O.S.No.138/2007 of Sub Court, Attingal and she was allowed to realise the amount with 12% interest per annum from the date of the suit till realization. The petitioner claims that she had attached the property of the judgment debtor comprising in re-survey No.81/5/1 (old survey No.393) having an extent of 5 Ares and 36 square meters. It is conceded in the petition that the 2nd respondent was having charge over the same property.
3. It is seen from the records that the 2nd respondent did approach the court in O.S.No.138/2007 and obtained Ext.P3 order. The grievance of the petitioner is that the 2nd respondent, without making the petitioner a party to the proceedings, has got the property sold by initiating proceedings under the SARFAESI Act and thereby committed fraud. The property was sold for a meager amount of Rs.6,75,000/- whereas the property would fetch more than Rs.60 lakhs. In pursuance to the sale conducted under the SARFAESI Act, Ext.P4 certificate has been issued.
4. The claim of the petitioner is that even if sale has been conducted, attachment effected by the petitioner still survives and that ought to have been taken note of by the court below. It is pointed out that the property was sold for a very meager amount and that is a fraud committed by the security holder and the judgment debtor in O.S.No.138/2007. Therefore, it is prayed that this Court may set aside the sale and direct that the property be sold in public auction with notice to the petitioner.
5. It cannot be said that the petitioner was unaware of the proceedings initiated by the 2nd respondent under the SARFAESI Act and the passing of Ext.P3 order. There is nothing to show that the petitioner did take any steps as against Ext.P3 order. At any rate, the petitioner must have the knowledge of the proceedings taken by the 2nd respondent under the SARFAESI Act.
If the petitioner has a case that sale has been conducted without showing encumbrance, the proper remedy is to approach the authorities concerned under the Debt Recovery Act and not the civil court. Without doing so, merely by saying that sale is conducted fraudulently, she cannot seek interference of this Court. Ext.P4 sale certificate has been issued in pursuance to the sale conducted under the SARFAESI Act. Reserving liberty of the petitioner to take such steps as are available to her under the said Act, this Original Petition is disposed of.
Sd/-
P.BHAVADASAN JUDGE smp