Kerala High Court
Thomas Chacko vs Sri. Mahesh Kumar on 8 July, 2020
Author: S.Manikumar
Bench: S.Manikumar, Shaji P.Chaly
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
&
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
WEDNESDAY, THE 08TH DAY OF JULY 2020 / 17TH ASHADHA, 1942
Con.Case(C).No.564 OF 2020 IN WA. 2352/2019
(AGAINST NON COMPLIANCE OF JUDGMENT DATED 19.12.2019 IN WA NO.2352/2019)
PETITIONER/PETITIONER:
THOMAS CHACKO, AGED 48 YEARS
S/O. T. T. CHACKO, THOPPIL HOUSE, MOTHOLY P.O., PALA,
KOTTAYAM DISTRICT, PIN-686575.
BY ADVS. SRI. MOHAN JACOB GEORGE
SMT.P.V.PARVATHY (P-41)
SMT.REENA THOMAS
SMT.NIGI GEORGE
RESPONDENTS/RESPONDENTS 1 & 3:
1 SRI. MAHESH KUMAR, AGED 50 YEARS
FATHERS NAME NOT KNOWN TO THIS PETITIONER, ZONAL MANAGER,
BANK OF INDIA, ZONAL OFFICE, KALOOR TOWERS,
KALOOR KADAVANTHARA ROAD, OPPOSITE A.J.HALL, KALOOR,
KOCHI-682017.
2 SRI. SALWIN AUGUSTINE, AGED 37 YEARS.
FATHERS NAME NOT KNOWN TO THIS PETITIONER, BRANCH MANAGER,
BANK OF INDIA, AASHIRWAD TOWERS, SHASTRI ROAD, KOTTAYAM-686001.
R1 BY ADVS. SRI. NAGARAJ NARAYANAN
SRI. SAIJO HASSAN
SRI. BENOJ C. AUGUSTIN
SRI. RAFEEK. V. K.
SMT. P. PARVATHY
SMT. SURYA P.SHAJI
SRI. MANAS P. HAMEED
SMT. AATHIRA SUNNY
THIS CONTEMPT OF COURT CASE (CIVIL) HAVING BEEN FINALLY HEARD ON 03-07-2020, THE
COURT ON 08-07-2020 DELIVERED THE FOLLOWING:
Cont. Case (C) No.564/2020 2
JUDGMENT
Dated this the 8th day of July, 2020 S.Manikumar, CJ Instant contempt case is filed alleging non compliance of Annexure-A1 judgment dated 19.12.2019 passed in W.A. No.2352 of 2019, by which, respondent - Bank of India, was directed to pay an amount of Rs.42,37,762/-
towards the principal sale amount plus stamp duty and registration charges.
Direction was also issued to pay a sum of Rs.25,000/-, as litigation charges, within ten days of the petitioner giving a letter surrendering possession of the property in question. Relevant portion of the said judgment is reproduced hereunder:
"10. In such circumstances, apart from the sum offered to pay as per Annexure R3(a), we deem it fit to direct the Bank of India to pay litigation expenses of Rs. 25,000/-.
11. Mr. J.Harikumar, learned counsel for the respondent Bank submitted that no sooner the appellant/ auction purchaser delivers possession of the subject property, the above said sum + litigation expenses as ordered, will be paid to the appellant/ auction purchaser. Mr. Mohan Jacob George, learned counsel for the auction purchaser/ appellant submitted that suitable letter would be given to the Bank.
12. Within ten days from the date of receipt of the letter effecting delivery of possession, the Bank shall pay a sum of Rs.42,37,762/- towards principal sale amount + Cont. Case (C) No.564/2020 3 Stamp duty and Registration charges and also pay a sum of Rs.25,000/- as litigation charges. The Bank shall take steps to cancel the sale deed as ordered by the Tribunal. Bank shall also take steps to inform the Sub Registration Officer about the setting aside of the sale. Auction purchaser/ appellant shall also return the original sale deed executed by the Bank in favour of auction purchaser/ appellant.
13. After the judgment was delivered, Ms. K.R. Monisha, learned counsel for the borrower, submitted that the entire amount ordered by this Court along with incidental expenses, if any incurred by the Bank, would be paid to the Bank, by the borrower/respondent on or before 30.3.2020 and that the Bank be directed to return the sale deeds deposited with them as also to hand over physical possession of mortgaged property to the borrower/ respondent.
14. Inasmuch as the prayer in this writ appeal is restricted only for repayment of the sale amount with appropriate interest to the auction purchaser, we are not inclined to make any direction. However, it is open to the borrower/respondents to approach the bank with the aforesaid request. If any such request is made, in order to give a quietus to the litigation, the Bank is directed to consider the same. At this juncture, learned counsel for the Bank submitted that if a request is made for one time settlement, the same would be considered. Submission is placed on record."
2. Petitioner has contended that though subsequent to the abovesaid judgment, he submitted letters dated 15.01.2020 and 20.01.2020, Cont. Case (C) No.564/2020 4 [Annexures-R2 & R2(a)]; one for surrendering the title deed and the other for surrender of possession, the Bank did not pay the amounts as directed by this Court. Therefore, he was constrained to issue Annexure-A3 advocate notice dated 30.01.2020 stating that he will initiate contempt proceedings.
However, on 5.2.2020, respondents have paid an amount of Rs.21,27,605/-, but not paid the balance amount, as ordered by this Court.
3. Alleging non-compliance of the judgment in W.A. No.2352 of 2019, in its entirety, this contempt petition is filed on the grounds, inter alia, that, though the petitioner has submitted the letter as directed by this Court surrendering the title deed with all rights, including possession on 15.01.2020, the respondents attempted to delay the same by making frivolous objections. Hence, he was constrained to issue Annexure-R2(a).
Petitioner has further contended that inspite of the issuance of Annexure-A3 notice, informing the Bank that he will initiate contempt proceedings, the respondents have not cared to comply with the directions of this Court.
4. When this contempt case came up for admission on 10.03.2020, Mr. Nagaraj Narayanan, learned standing counsel for Bank of India, submitted that seeking review of judgment in W.A. No.2352 of 2019, R.P. No.106 of 2020 has been filed. It was also stated that I.A. No.1 of 2020 has been filed seeking extension of time for implementation of the said judgment. Later, by order dated 12.03.2020, R.P. No.106 of 2020 was Cont. Case (C) No.564/2020 5 disposed of, modifying the judgment dated 19.12.2019 in W.A. No.2352 of 2019. Said judgment is extracted hereunder:
"3. However, Sri. Nagaraj Narayanan, learned counsel for the review petitioners - Bank, submitted that the first sentence in paragraph 2 of the judgment, which commences that, "Before the writ court, Bank has offered to pay 7.5% interest on the sale consideration deposited by the auction purchaser/writ petitioner, until the amount is actually refunded by the Bank", may be deleted. He further submitted that it was the submission of the borrower that the interest on the sale consideration has to be paid, and not by the Bank.
4. Therefore, this Court is of the view that the first two sentences in paragraph 2 of the judgment can be deleted. Accordingly, the first two sentences in paragraph 2 of the judgment dated 19.12.2019 in WA No.2352 of 2019 will stand deleted and the 2nd paragraph will start with the sentence, "Adverting to the rival contentions and taking note of.....".
5. On 12.03.2020, when the matter came up for further hearing, learned standing counsel for Bank of India submitted that within a week's time, judgment dated 19.12.2019 would be complied with and the same would be reported to this Court. Thus, in I.A. No.1 of 2020 dated 22.02.2020, this Court extended the time for payment by one week, which expired on 19.03.2020. On 30.06.2020, learned standing counsel for the Bank again sought for time to get instructions as to whether, interest can be awarded. Order dated 30.06.2020 reads thus:
Cont. Case (C) No.564/2020 6"Averments in the contempt petition is that the Bank has not paid the amount directed. No sooner, the review petition is dismissed on March, 2020, the Bank should have paid the entire amount as stated supra. The Bank has paid only Rs.21,27,605/-. As much as Bank is not entitled to retain the money of the auction purchaser, interest normally follows. Retention money by the bank is unreasonable. Question is whether interest can be awarded ?
Hon'ble Division Bench of Madras High Court in (V.Sridhar v. The Authorized Officer) in judgment dated 23.1.2018 in W.P. (C) No.16579/2016 held thus:
"26. In the light of the above discussion, this Court directs the respondent bank to refund a sum of Rs.1,21,37,500/- (One Crore twenty one lakhs thirty seven thousand and five hundred only), to the petitioner. However, it is stated in the counter that Rs.40 lakhs, was refunded to the petitioner, in the form of DD dated 06.05.2016, after the filing of Writ Petition on 25.04.2016. Though, normally, in this situation, the petitioner is entitled for interest, as a purchaser, the petitioner is also duty bound to enquire about the property, before participating in the auction, as a person of normal diligence before buying any immovable property and when the petitioner himself has not made proper enquiries on the schedule property and encumbrance, there is a fault on the part of the petitioner also and therefore, this Court is not inclined to grant any interest to the amount paid by the petitioner.
27. In the result, the Writ Petition is allowed and the impugned order dated 06.10.2015 passed by the respondent is hereby quashed. The respondent bank is directed to refund a sum of Rs.1,21,37,500/- (One Crore twenty one lakhs thirty seven thousand and five hundred only), less the amount already paid if any, to the petitioner, within a period of four weeks from the date of receipt of a copy of this order, failing which the amount shall carry interest at 9% per annum from 10.07.2015 till the date of payment. No costs."Cont. Case (C) No.564/2020 7
However, Mr. Saijo Hassan, learned counsel for respondent, seeks time to get instructions on the above. Post on 2.7.2020."
6. On 02.07.2020, when the contempt petition came up for further hearing, Mr. Nagaraj Narayanan, learned counsel for the bank, submitted that the bank has tendered a demand draft dated 1.7.2020 drawn in favour of Mr. Thomas Chacko, by Bank of India for Rs.21,10,157/-. He further submitted that explaining the reasons for the delay, an affidavit has been filed. Without prejudice to the demand made in the contempt petition, Mr. Mohan Jacob George, learned counsel for the petitioner, acknowledged the receipt of the abovesaid demand draft.
7. Affidavit dated 2.7.2020 is extracted hereunder.
A) Writ Appeal No. 2352 of 2019 filed by the petitioner was disposed by this Court with a direction to the respondent bank to deposit a sum of Rs.42,37,762/- towards principal sale amount plus Stamp duty and Registration charges and also to pay a sum of Rs.25,000/- as litigation charges, within ten days from the date of receipt of the letter effecting deliver of possession by the appellant vide its judgment dated 19.12.2019. The judgment was uploaded in the website on 10.01.2020 and the certified copy of the judgment was reserved by the Bank on 15.01.2020. Accordingly the time allowed by the judgment was upto 25.01.2020.
B) Thereafter, the respondents filed Review Petition No. 106 of 2020 against the judgment dated 19.12.2019 in Writ Appeal No. Cont. Case (C) No.564/2020 8 2352 of 2019 before this Court challenging the award of interest rate awarded in the said judgment and the same was disposed on 12.03.2020.
C) The amount ordered by the Court may be divided as follows:
(i) Rs. 21,27,605/- being the Sale Amount plus Stamp duty plus Registration Charges.
(ii) Rs. 25,000/- being the cost of litigation.
(iii) Rs. 21,10,157/- being the Interest accrued on the sale amount.
D) In the meantime, on 27.01.2020, the Bank had taken a Pay Order No.5795 in favour of "Thomas Chacko, A/c. No. 10970100090093" dated 27.01.2020 for Rs.21,27,605/- (Rupees Twenty One Lakhs Twenty Seven Thousand Six Hundred and Olive oil) and sent the said information to the petitioner vide postal communication dated 27.01.2020, which is evident from Annexures-R1(a) & R1(b). But, the petitioner refused to receive the said postal communication. Thereafter, the aforesaid Pay Order was cancelled and the respondent Bank deposited the aforesaid amount to the petitioner's (auction purchaser) SB Account No. 10970100090093 with Federal Bank, Pala Branch vide RTGS on 05.02.2020. Inadvertently, the litigation cost of Rs. 25,000/- was not paid along with the said sum and when the mistake was realized, it was paid by RTGS 11.03.2020.
E) Meanwhile, the respondent Bank filed review petition on 23.01.2020 challenging the Interest portion. On 16.01.2020, instead of submitting the Registered Sale Certificate bearing Document No. 2006 of 2007 to the Branch Office at Kottayam, the petitioner returned the said document to the Zonal Office at Ernakulam. At that time, the petitioner orally told to the Nodal Officer that he had not received the original Title Deed No. 2142/1973, other than this Sale Certificate from the Bank. Since, the document of Cont. Case (C) No.564/2020 9 acknowledgment of receipt of original Title Deed No. 2142/1973 by the petitioner was with the Branch Office, the Zonal Office could not check the genuineness of the said submission of the petitioner that he did not receive the original title deed. Subsequently, the Branch Office of the Bank verified the records and found that the petitioner had in fact received the original Title Deed No.2142/1973, since the document acknowledging the receipt of the same was available with the Branch. In this regard, it is pointed out that in Annexure-R1(c) letter dated 15.01.2020 issued by the petitioner to the Zonal Office, he had suppressed the fact that he was in possession of the original Title Deed No. 2142/1973.
F) Immediately after the disposal of the review petition, Branch Manager of the respondent Bank by letter dated 16.03.2020, specifically asked petitioner to return the original of Title Deed No.2142/1973. Consequently, petitioner returned the original title deed on 20.03.2020 (Friday) to the Branch Manager, Kottayam. But, before making the final payment of the interest portion, the Bank had to cancel the sale certificate at the Registration Department (Sub Registrar, Meenachil, Pala). At that time, though National Lockdown was not declared, the threat of COVID-19 pandemic was looming large and strict movement restrictions were imposed in hotspots at Kottayam, where the Bank Branch was situated. However, in spite of large movement restrictions, Branch Manager on 21.03.2020 (Saturday) itself went to the Sub Registrar's Office, Meenachil, which is 30 kilometers away from the Kottayam Branch Office, to get the sale certificate cancelled. But, he was informed by the Sub Registrar that it can be cancelled only if the Authorized Officer (SARFAESI) of the Bank and the petitioner are present before the Sub Registrar. Hence, cancellation of the sale certificate could not be effected on Cont. Case (C) No.564/2020 10 21.03.2020 (Saturday). Thereafter, 22.03.2020 was a Sunday and from 23.03.2020 onwards, National Lockdown was declared. As a result, functioning of the Bank was limited to minimum essential services with minimum staff on half day duty basis. Accordingly, staggering was introduced in the Bank with minimum staff (less than 30%). Further, the Bank was functioning half a day and, that too, only for minimum essential services. Even before the National Lockdown commenced on 23.03.2020, the Bank had already received communication from the Head Office at Mumbai, on 20.03.2020, to introduce staggering with bare minimum staff at the Bank Office from 23.03.2020 onwards.
G) Hence, the further delay in payment of the interest portion has occurred due to the circumstances in which, sale certificate could not be cancelled by the Registration Department (Sub Registrar's Office, Meenachil). Even now, the property is in the name of the petitioner/auction purchaser as the sale certificate is not cancelled by the Registration Department. When the sale certificate is cancelled, the transaction also gets cancelled. Since the petitioner had earlier refused to accept the postal communication from the Bank and that he had suppressed in his letter, that he is in possession of the original title deed, the Bank was apprehensive that once the final payment is made, the petitioner might not turn up in the Sub Registrar's office to get the sale certificate cancelled, which would result in harassment to the Bank. Hence, the Bank has waited to get the sale certificate cancelled.
H) The Bank has further stated that because of the lockdown, Registration Department (Sub Registrar's Office, Meenachil) was not functioning from 23.03.2020 till 17.05.2020. From 18.05.2020 to 07.06.2020, the Registration Offices were functioning on a limited Cont. Case (C) No.564/2020 11 basis with minimum staff and on token system. National lockdown was relaxed from 08.06.2020 and with the relaxation, though the Registration Offices started functioning from 08.06.2020, due to declaration of hotspots and containment zones in various places in Kottayam District and consequent travel restrictions, steps could not be taken by the Bank to get the sale certificate cancelled and to effect payment. This was also compounded by fact that due to declaration of hotspots and containment zones and consequent travel restrictions, the Sub Registrar Office at Meenachil was not smoothly functioning on a continuous basis. The delay in the final payment is only due to COVID 19 pandemic, consequent National Lockdown, and subsequent travel restrictions in Kottayam District.
I) The Bank has further stated that there is no wilful delay in payment or wilful disobedience of the orders of this Court. They were always ready and willing to make the balance final payment, which could not take place due to COVID 19 pandemic situation. However, the Bank wishes to state its apprehension that the petitioner, after receipt of the payment, may not co-operate with the Bank to get the sale certificate cancelled at the Sub-Registrar's Office, Meenachil, for which, some directions may be issued by this Court."
8. Heard learned counsel for the respective parties and perused the material available on record.
9. Letter dated 15.01.2020 (Annexure-A2) submitted by the petitioner to the Zonal Manager of Bank of India is extracted hereunder:
"From 15/01/2020
Thomas Chacko, aged 48 years,
S/o. T.T. Chacko, Thoppil House,
Cont. Case (C) No.564/2020 12
Motholy P.O., Pala,
Kottayam District.
To
The Zonal Manager,
Bank of India,
Zonal Office,
Kaloor Towers,
Kaloor-Kadavanthra Road,
Opp. A. J. Hall, Kaloor,
Cochin-17.
Sub:- Implementation of Judgement dated 19.12.2019 In
W.A.No.2352/2019 of the Hon'ble Division Bench of the High Court of Kerala.
Ref:- (1) Sale certificate dated 30.03.2007 and Salo Deed No.2006/2007 dated 12.04.2007 of SRO Meenachil in my favour executed by the Authorized Officer of Bank of India, Trivandrum Branch, St. Mary's Complex, Palayam, Thiruvananthapuram.
(2) Direction issued by the Hon'ble Division Bench of the High Court of Kerala in the Judgement dated 19.12.2019 in W.A.No.2352/2019 ordering payment of Rs 42,37,762 - Rs.25,000/- towards litigation expenses to me by the Bank.
1. As ordered by the Hon'ble Division Bench of the High Court of Kerala, I submit herewith the original sale certificate dated 30.03.2007 issued by the Authorized Officer, Bank of India, Trivandrum Branch in my favour along with the original sale deed No. 2006/2007 of SRO, Meenachil executed by the Authorized Officer of the Bank in my favour. I hereby state that I have no claim whatsoever in respect of the property covered by the aforesaid sale deed (73.20 Ares in Re.Sy.No.121/2 in Block No.40 (Old Sy. No.601/3B, 601/3A/1 in Poovarany Kara, Povarany Village, Meenachil Taluk, Kottayam District) and surrender all my rights under the aforesaid title deed including title, possession and whatsoever nights conveyed in my favour by the Bank. I also place on record the fact that the sale was set aside by the Hon'ble DRT, Cont. Case (C) No.564/2020 13 Ernakulam as per order dated 05.06.2017 in TSA 1198/2016 (S.A.55/2007) and that I had never been able to enjoy the proper due to the obstruction caused by the original owners of the aforesaid property which resulted in civil and criminal litigations and also filing of writ petition seeking Police protection before the Hon'ble High Court of Kerala.
2. I humbly request that your goodself may be pleased to pay the amounts ordered by the High Court of Kerala as per the Judgement mentioned above at the earliest and without any further delay in compliance of the directions contained therein. The amount of Rs.42,62,762/- may be paid to my Bank account, the details of which is given below:
THOMAS CHACKO, SB A/c No.10970100090093, The Federal Bank Ltd., Pala Branch, IFSC Code - FDRL 0001097.
I pray that the direction may be complied with at the earliest.
Awaiting favourable response.
THOMAS CHACKO Encl: Original sale certificate dated 30.03.2007 issued by the Authorized Officer, Bank of India, Trivandrum."
10. Letter dated 20.01.2020 [Annexure-A2(a)] submitted by the petitioner to the Zonal Manager, Bank of India is extracted hereunder:
"20.01.2020 From Thomas Chacko, aged 48 years, S/o.T.T.Chacko, Thoppil House, Motholy P.O., Pala, Kottayam District Cont. Case (C) No.564/2020 14 To The Zonal Manager, Bank of India, Zonal Office, Kaloor Towers.
Kaloor-Kadavanthra Road, Opp. A.J.Hall, Kaloor, Cochin-17.
Sub: Implementation of Judgement dated 19.12.2019 in W.A.No.2352/2019 of the Hon'ble Division Bench of the High Court of Kerala.
Ref: 1) My letter dated 15.01.2020 surrendering possession and handing over the original sale deed to you. Sir,
1. As ordered by the Hon'ble Division Bench of the High Court of Kerala, I surrendered the original sale deed in my favour on 16.01.2020 stating clearly that all my rights including possession of the property is surrendered to the bank. However, In view of the observation by the bank that nothing is mentioned about delivery of the property to bank I submit that all rights being surrendered in your favour necessarily took in the delivery of possession also reiterate that the have effected the requisite delivery of possession to the bank and in case of any doubt this letter may be treated as absolute delivery of possession in favour of Bank of India.
2. Please note that in FIR 2706/17 of Pala Police Station, filed by Bank though P. Venkitta Ramana, the Chief Manager, Kottayam Branch, he has clearly asserted that the property is in the possession of the Bank. Copy of the FIR ( duly translated to English) is attached hereto. Hence, you may not delay the compliance of the direction contained in the judgement any further. I pray that the direction may be complied with at the earliest.
THOMAS CHACKO Cont. Case (C) No.564/2020 15 Encl. Translated copy of the FIR In CR NO 2706/17 of Pala Police Station."
11. Notice sent by the Bank to the petitioner dated 27.01.2020 [Annexure-R1(a)] is extracted hereunder:-
"Ref:- KTM/SAL/19-20/27 Date: 27/01/2020 To Thomas Chacko, S/o. Mr. T. T. Chacko, Thoppil House, Mutholy PO, Pala.
Sub:- Return of sale Price plus stamp duty plus Registration charges as per the judgement in WA 2352/2019 by the Hon'ble High Court of Kerala.
Sir, We refer to the judgement in WA 2352/2018 by the Hon'ble High Court. We also refer to your letter at 15.01.2020 enclosing the Original registered Sale Certificate Bearing Document No.2006/07 and the original Sale Certificate dtd. 30.03.2007 and received by our Zonal Office on 16.01.2020 and your letter dtd. 20.01.2020 to the effect of surrendering the possession of the subject property and also the tele-talk we had with you on 24-01-2020 in the captioned matter. Accordingly, we are returning the sale price plus stamp duty plus Registration charges. Bank has filed Review Petition before the Hon'ble High Court of Kerala to modify the judgement in WA 2352/2019 in respect of the interest part. Since the Review petition is pending before the Hon'ble Court, the payment of Interest can be finalized only after the outcome of the said Review Petition. Therefore, as agreed, you are requested to collect the Pay Order No.5795 in favour of Thomas Chacko, A/c No.10970100090093 dtd. 27-01-2020 for Rs.21,27,605/- (Rupees Twenty one lakhs twenty Cont. Case (C) No.564/2020 16 seven thousand six hundred and five only) as sale price plus stamp duty plus Registration charges as detailed below. Sale amount - Rs.19,70,000/-
Stamp Duty - Rs.1,18,200/-
Registration Fees - Rs.39,405/-
Total - Rs. 21,27,605/-
We request you to collect the Pay order from Kottayam Branch.
Yours faithfully Senior Branch Manager"
12. Notice dated 30.01.2020 (Annexure-A3) issued by the learned counsel for the petitioner to the Zonal Manager, Bank of India reads thus:
To
1. The Zonal Manager, Bank of India, Zonal Office, Kaloor Towers.
Kaloor-Kadavanthra Road, Opp. A.J.Hall, Kaloor, Cochin-17.
2. Senior Manager, Bank of India, Kottayam Branch, Ashirwad Towers.
Shastri Road, Kottayam- 686 001.
Sub:- Contempt of Court - Wilful and deliberate non- compliance of Judgement dated 19.12.2019 In W.A No. 2352/2019 of the Hon'ble High Court of Kerala.
Ref:- Our Letter dated 15.01.2020 & 20.01.2020 surrendering the sale certificate and all rights in favour of the Bank. Sir/s.
Under Instructions from my client Sri.Thomas Chacko, Thoppil House. Mutholy PO., Pala Kottayam, I am Issuing this notice to you.
Cont. Case (C) No.564/2020 17As per the Judgement dated 19.12.2019 in W.A. 2352/2019 of the Hon'ble High Court of Kerala, you were directed to pay a sum of Rs.42,37,762/- plus stamp duty and registration charges and also to pay a sum of Rs.25,000/- towards litigation charges. You have not complied with the same till date in spite of the representations made by my client. You have committed wilful and deliberate disobedience of the Judgement passed by the Hon'ble High Court of Kerala. In the aforesaid circumstances, this notice is issued to you calling upon you to pay to my client the aforesaid amounts, as ordered by the Hon'ble High Court of Kerala, within three days from the date of receipt this notice failing which, I will be constrained to file appropriate petitions before the Hon'ble High Court seeking initiation of Contempt of Court proceedings personally against you. You are also put on notice that you will also be held personally liable for the costs incurred by my client thereby.
Dated this the 30th day of January, 2020.
Mohan Jacob George, Advocate"
13. Notice dated 16.03.2020 (Annexure-A4) issued by the respondents to the petitioner acknowledging receipt of prior title deed is reproduced:
"16.03.2020 To Thomas Chacko, S/o. Mr. T. T. Chacko, Thoppil House, Mutholy PO-686573, Pala.
Sub:- Request for return of original Title Deed No.2142/1973 dtd. 13-11-1973.
Ref:- Judgment in WA 2352/2019 by the Hon'ble High Court of Kerala.Cont. Case (C) No.564/2020 18
Sir, We refer to the judgement in WA 2352/2019 by the Hon'ble High Court of Kerala. We also refer to your letter dtd. 15.01.2020 and 20.01.2020. We have returned the sale price plus stamp duty plus Registration charges and litigation expenses. We have credited the amount to your SB account No.10970100090093 with Federal Bank, Pala Branch. We request you to return the original title deed No.2142/1973 dtd. 13.11.1973 which you have received from our bank 10-08-2007.
Yours faithfully Senior Branch Manager"
14. Reasons stated in the affidavit by the bank for not paying the amount as ordered by this Court vide judgment in W.A. No.2352 of 2019 dated 19.12.2019 are that the contempt petitioner returned the registered sale certificate bearing Document No.2006/2007 to the Branch Office at Ernakulam, instead of submitting the same to Kottayam branch. Though the petitioner was in possession of the original Title Deed No.2142/1973, he had suppressed the said fact. But, when the same was pointed out vide Anexure-
R1(c) dated 15.01.2020, and when the bank asked the petitioner, by letter dated 16.03.2020, he returned the same on 20.03.2020, to the Branch Manager, Kottayam. Thus, the petitioner had no bona fide intention.
15. It is contended in the counter affidavit that when the Branch Manager, Kottayam, went to the Sub Registrar's Office, Meenachil, which is 30 kilometres away from Bank of India, Kottayam Branch, to cancel the sale Cont. Case (C) No.564/2020 19 certificate, he was informed by the Sub Registrar, Meenachil that unless the Authorised Officer of the bank and the petitioner are present before the Sub Registrar, cancellation cannot be effected. No material document has been filed to support this contention. At this juncture, we wish to state that averments made should be supported by valid documents, more so, in contempt proceedings, which is quasi criminal in nature.
16. National Lockdown Guidelines issued by the Central Government and restrictions of movements in hotspots in Kottayam, where the bank is situated, are cited as one of the reasons for not implementing the judgment of this Court, after the extended period by this Court upto 19.03.2020.
17. Limitation on engagement of staff from 23.03.2020 is also cited as one of the reasons for not implementing the judgment of this Court, though extension of time, as stated above, was granted upto 19.03.2020.
Cancellation of sale certificate by the bank is cited as one of the reasons for not complying with the directions in the judgment of this Court. What are all the steps taken by the bank to cancel the sale certificate is also not stated. From a reading of the affidavit filed by the Zonal Manager of Bank of India (1st respondent), we could deduce that it is not the case of the bank that the bank had requested the petitioner to be present on any date after 19.03.2020 in the Sub Registrar's Office, Meenachil, for cancelling the sale Cont. Case (C) No.564/2020 20 certificate. But, the bank, in its affidavit, has stated that the Registration Department was not functioning from 23.03.2020 to 17.05.2020 and the said department was functioning only from 18.05.2020 to 07.06.2020 with limited staff strength. Bank has not filed any petition before this Court for extension of time after 19.03.2020, citing any of the above reasons.
18. However, it could be seen that after the initiation of contempt proceedings, the respondent bank has immediately swung into action, to tender a demand draft, which the bank did not do earlier, when the petitioner has furnished title deed dated 13.11.1973 to the bank on 20.03.2020. Giving due consideration to the exchange of correspondences between the parties, we are of the view that the respondent bank has not acted diligently and at the same time, we are afraid to hold that the bank has committed contempt intentionally. On the facts and circumstances of this case, we are not inclined to accept the reasons assigned in the affidavit dated 2.7.2019 filed by the first respondent. We cannot desist from holding that the bank has delayed implementation of our judgment dated 19.12.2019 in W.A. No.2352 of 2019.
19. Bank has withheld a portion of the amount due and payable to the petitioner. In banking transaction, bank levies interest when there is default by the borrower. We are not inclined to mulct the bank with interest for the delayed payment of Rs.21,27,605/-. Instead, we deem it fit to Cont. Case (C) No.564/2020 21 dispose this contempt case, with cost of Rs.10,000/- towards litigation expenses, to be paid by the respondent bank to the petitioner, within a period of ten days from the date of receipt of a certified copy of this judgment, failing which, the petitioner will be at liberty to take appropriate action against the bank.
Contempt case is ordered accordingly.
Sd/-
S.MANIKUMAR CHIEF JUSTICE Sd/-
SHAJI P.CHALY JUDGE Krj Cont. Case (C) No.564/2020 22 APPENDIX PETITIONER'S/S EXHIBITS:
ANNEXURE A1 CERTIFIED COPY OF JUDGMENT DATED 19.12.2019 IN W.A.NO.2352/2019.
ANNEXURE A2 COPY OF LETTER DATED 15.01.2020.
ANNEXURE A2(A) COPY OF LETTER DATED 20.01.2020.
ANNEXURE A3 COPY OF ADVOCATE NOTICE DATED 30.01.2020.
ANNEXURE A4 COPY OF THE NOTICE DATED 16.03.2020 WITH THE ENDORSEMENT OF THE RESPONDENTS ACKNOWLEDGING RECEIPT OF THE PRIOR TITLE DEED.
RESPONDENT'S EXHIBITS:-NIL ANNEX.-R1(A):- COPY OF THE NOTICE SENT BY THE BANK TO THE PETITIONER (AUCTION PURCHASER) DATED 27.01.2020.
ANNEX.-R1(B):- COPY OF THE ENDORSEMENT IN THE POSTAL ADDRESS.
ANNEX.-R1(C):- COPY OF LETTER DATED 15.01.2020 ISSUED BY THE PETITIONER TO THE ZONAL OFFICE OF THE BANK.
//TRUE COPY// P.A. TO C.J.