IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT:
THE HONOURABLE MR.JUSTICE P.BHAVADASAN TUESDAY, THE 9TH DAY OF DECEMBER 2014/18TH AGRAHAYANA, 1936 OP(C).No. 2571 of 2014 (O) --------------------------------------
AGAINST THE ORDER DATED 09-10-2014 IN OS 78/2002 OF PRINCIPAL SUB COURT, ALAPPUZHA .....
PETITIONER(S):
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TITTO ABRAHAM, AGED 49 YEARS, S/O.LATE P.J.ABRAHAM, PUTHENPURAYIL HOUSE, KAINADY P.O., ALAPPUZHA DISTRICT.
BY ADVS.SRI.K.S.HARIHARAPUTHRAN SRI.M.D.SASIKUMAR SRI.GEORGE MATHEW SRI.DIPU JAMES SRI.SUNIL KUMAR A.G.
RESPONDENT(S):
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1. MUTHOOT BANKERS, REPRESENTED BY ITS MANAGING PARTNER, GEORGE ALEXANDER, PUTHENVEETTIL BUILDING, PAZHAVANGADI, RANNI - 689 672.
2. ANCY TITTO, W/O.TITTO ABRAHAM, AGED 45 YEARS, PUTHENPURAYIL HOUSE, KAINADY P.O., ALAPPUZHA DISTRICT - 686 534.
3. SUNIL JOSEPH, S/O.JOSEPH, PALLONATH HOUSE, KOTTAYAM-686 001.
R1 BY ADV. SRI T.R . RAVI, ADVOCATE COMMISSIONER SRI.C.S.MANILAL THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 09-12-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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APPENDIX
PETITIONER(S)' EXHIBITS -------------------------------------
EXT.P1 - TRUE COPY OF THE E.P.NO.86 OF 2006 DATED 24-08-2006 OF THE SUB JUDGE'S COURT, ALAPPUZHA.
EXT.P2 - TRUE COPY OF THE OBJECTION DATED 11-06-2013 IN E.P.NO.86 OF 2006. EXT.P3 - TRUE COPY OF THE PROCLAMATION NOTICE DATED 22-10-2013.
EXT.P4 - TRUE COPY OF THE JUDGMENT DATED 24-01-2014 IN OPC.NO.3719 OF 2013.
EXT.P5 - TRUE COPY OF THE SALE DEED DATED 04-09-2013 OF SRO, PULINKUNNU. EXT.P6 - TRUE COPY OF ORDER DATED 09-10-2014 IN EP NO.86 OF 2006 IN OS NO.78 OF 2002 OF THE SUBORDINATE JUDGE'S COURT, ALAPPUZHA.
RESPONDENT(S)' EXHIBITS:
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NIL //TRUE COPY// P.S.TO JUDGE Msv/ P.BHAVADASAN, J.
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Dated this the 09th day of December, 2014
J U D G M E N T
The dispute in this case relates to the fixation of upset price by the court below in regard to the sale of the property which belonged to the petitioner. The petitioner suffered a money decree for which his property involved in the proceeding was brought to sale.
2. To cut the long story short, the property was intended to be sold at an upset price fixed at ₹ 28,15,000/-.
An objection was preferred by the judgment debtor who is the petitioner herein that the property worth at least ₹ 2 crores. It is also pointed out that on an earlier occasion, when the sale was about to be conducted, the upset price had to be fixed at ₹ 30 lakhs.
3. Disregarding the objections, upset price was fixed at ₹ 28,15,000/-. The petitioner approached this Court by way of O.P.(C) No. 3719/2013 which was disposed of by Ext.P4 judgment. By the said judgment, this Court set aside the impugned order and directed to reconsider the issue. The petitioner would say that thereafter he produced Ext.P5 sale deed in order to ascertain the comparative value of land in the locality. However, the respondents moved this Court by way of review and the review petition was dismissed observing that the E.P. may be disposed of within three months from the date of order.
4. It is submitted by the learned counsel for the petitioner that as per order of this Court, a sum of ₹ 5 lakhs had already been deposited in the execution court. After the matter was sent back, again the price was fixed at ₹ 28,15,000/-. When the matter brought before this Court with the present Original Petition, this Court felt that instead of dragging on the matter further, it will be appropriate for this Court to issue Commission to ascertain the fair value of the property. So a commission was issued and the Commissioner has filed a report, which is marked as Ext.C1.
The Commissioner, after narrating the details and also after having referred to the various modes of valuation and also after having gone through the relevant documents, in his fair assessment, assessed the value of land at ₹ 22,600/- per cent.
5. Strong objection is taken by the respondents to the above valuation pointing out various aspects in the report which according to the respondents, would betray the valuation made by the Commissioner. It is pointed out that the comparative land taken for arriving at the valuation is situated 20 minutes away by boat from the property in question and the 50 cents of the property is a well developed residential area whereas, the property in question is a water logged area. It is also pointed out by the learned counsel for the respondents that the respondent had produced several documents before the Commissioner showing that the value of the land at the relevant time was only ₹ 12,500/- per ares which was fair land value fixed in 2010. It was therefore contended that the valuation adopted and accepted by the Commissioner may not be accepted.
6. A roving enquiry into this aspect is not warranted in these proceedings. It is only to ascertain the details of the matter that the Commission was issued. At any rate, the assessment made by the lower court does not appear to be correct. As to what should be the proper assessment is a matter for determination again. The Commissioner has given his own mode of evaluation for arriving at the value of land in the locality. Objections have also been filed by the respondents. It is for the court below to conduct an enquiry into the matter and arrive at a conclusion as to the approximate land value in the area. After doing so, the court below may also consider the extent of property that needs to be sold initially to meet the decree debt.
For the above reasons, this Original Petition is allowed. The impugned order is set aside and the matter is remanded to the execution court for determining the fair land value on the basis of the Commissioner's report and the objection filed by the respondents. Copies of which shall be forwarded to the court below. The court below may dispose of the matter as expeditiously as possible, at any rate, within one month from the date of receipt of the copy of this judgment.
ds //True Copy// P.A. To Judge Sd/-
P.BHAVADASAN JUDGE P.BHAVADASAN, J.
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Dated this the 07th day of November, 2014
O R D E R
The dispute in this case relates to the valuation made by the court below for sale of 5 and odd acres of land which belongs to the petitioner herein.
2. The petitioner suffered a money decree in the year 2002 and execution proceedings were taken out in 2006. We are in 2014. There have been several proceedings in execution regarding the valuation of the property. In the last occasion, when the petitioner approached this Court was as per Ext.P4, when the petitioner moved this Court complaining of improper valuation and lack of opportunity for adducing evidence and contending that 30 lakhs assessed as upset price is too low. This Court was inclined to accept that contention set aside the upset price fixed by the court below at 30 lakhs and remanded the matter to the execution court for fresh consideration of the matter for enabling the parties to supply further materials in that regard.
3. After the said remand order, parties produced materials. The petitioner claims that he has produced Ext.P5 document which would show the proper valuation at that period. Which according to the petitioner would show that the price is much higher and the extent properties that need to be sold going by the valuation as could be ascertained from Ext.P5 must be less than 1 acre. There is also a complaint voiced that adequate opportunities were not given to the petitioner to put forward his submissions and it may be because of the fact that there was some time limit prescribed by this Court.
4. The learned counsel appearing for the respondent on the other hand contended that the upset price now fixed as Rs. 28 and odd lakhs is based on the valuation statement filed by an official and that has to be given due weight.
5. One must at once remember that the complaint of the petitioner on the earlier occasion was that Rs. 30 lakhs fixed as upset price itself is too low and now he is faced with a situation where the upset price is Rs. 28 and odd lakhs. It is also submitted that as per the order of this Court, Rs. 5 lakhs have already been deposited by him.
6. Though it is claimed that property is unyielding and nonfertile and is only a padasekharam unfit for cultivation, the valuation statement which was made available for perusal by the respondent shows that it is a pucka coconut and arecanut garden.
7. The learned counsel appearing for the respondent pointed out that other materials also have been looked into by the officials concerned and it was thereafter that the upset price was arrived at by the officials.
8. Though such a contention is taken, the valuation statement made available does not reflects nor does the court below refer to those matter.
9. Faced with this situation, the learned counsel appearing for the respondent pointed out that in order to avoid controversy regarding the upset price, the respondent is willing to take out a Commission from this Court to assess the value of land and that may be accepted. That proposition may be considered.
10. As rightly pointed out by the learned counsel for the respondents, there cannot be a roving enquiry into the upset price, especially, under Order XX1 Rule 26. It is only an approximate value that needs to be fixed.
11. The contention of the learned counsel for the petitioner that evidence has to be adduced, documents will have to be produced and all exercise of a regular challenge will have to be undergone, cannot be accepted. However, it also does not mean that a proper upset price need not be fixed. For the said purpose, the valuation of the property becomes absolutely necessary.
12. Under these circumstances, it is felt that the proposal put forward by the counsel for the respondent is a reasonable one.
13. This Court therefore feels that a Commission can be appointed from this Court to assess the value of the property taking into consideration the various aspects as are necessary for arriving at the valuation of the property like nature of the property, location of the property etc.
14. Therefore, this Court appoints Sri.T.R.Ravi as Commissioner for visiting property and assessing the valuation of the property and submit a report to this Court within a period of two weeks from today. The Commission bata is tentatively fixed at ₹ 30,000/- which shall be paid by the respondents herein and a memo to that effect shall also be filed. The report may be filed on or before 21.11.2014. The sale posted to 10.11.2014 shall stand adjourned till 25.11.2014.
Inform the Commissioner immediately and sent a copy of this order to the Commissioner.
P.BHAVADASAN JUDGE ds