Shine P.Jacob vs State Of Kerala

Dr. Kauser Edappagath, J

This Crl.Revision Petition has been directed against the judgment in Crl.Appeal No.121/2021 dated 21st December, 2021 on the file of Principal Sessions Court, Kollam (for short, 'the appellate court') confirming the order in CMP No. 2348/2019 in MC No.21/2019 dated 27th February, 2021 on the file of Judicial First Class Magistrate Court, Pathanapuram (for short, the trial court).

The 1st revision petitioner herein is the husband of the 2nd respondent. The 2nd revision petitioner is the father of the 1st revision petitioner. The 2nd respondent filed MC No.21/2019 before the trial court against the revision petitioners u/s 12 of the Protection of Women from Domestic Violence Act (for short, 'the DV Act') claiming various reliefs. She has filed a petition u/s 23(2) of the DV Act seeking interim reliefs. The trial court allowed it as per the order dated 27th February, 2021 and the following order is passed:

“(1) The respondent shall not cause any sort of physical, mental or verbal abuse against the petitioner or her children.

(2) The first respondent shall pay an amount of Rs.15,000/-as interim maintenance to the petitioner and her children payable on 5th of every month until further orders.

(3) The  respondents  are  restrained  from  alienating  B schedule property until further orders.”

The revision petitioners challenged the said order before the appellate court. The appellate court remanded the matter to the trial court with a direction to dispose of the MC itself within a time frame. Aggrieved by the order of the trial court as well as the appellate court, this criminal revision petition has been preferred.

I have heard the learned counsel for the revision petitioners, the learned Public Prosecutor as well as the learned counsel for the 2nd respondent.

The revision petitioners are mainly aggrieved by the relief No.(3) in the order of the trial court. As per relief No.(3), the revision petitioners were restrained from alienating the B schedule property until further orders.

5.20 Ares of property shown as B schedule property belong to the revision petitioners. It is a commercial building. One of the prayers in the MC pending before the trial court is for the recovery of gold ornaments worth `1 crore. It was in these circumstances, an interim order of injunction was granted by the trial court.

The revision petitioners filed IA No.4/2022 before this court to set aside the order of the trial court in CMP No.2348/2019 to the extent of restraining the revision petitioners from alienating the B schedule property. It is alleged in the said petition that the 1st revision petitioner and the 2nd respondent jointly availed loan from the South Indian Bank, Pathanapuram Branch by mortgaging B schedule property as security and since the loan amount was defaulted, the Bank initiated SARFAESI proceedings and consequently took possession of the B schedule property. It is further alleged that the B schedule property is now put for sale by the Bank and unless the loan amount is repaid, it would be sold. According to the revision petitioners, the only way to discharge the liability due to the Bank is to sell the B schedule property by way of a private sale. For that purpose, the injunction passed by the trial court has to be vacated.

Admittedly, plaint B schedule property is not a shared household. Hence, as a matter of right, the 2nd respondent cannot claim any right over it. It is a commercial building. It is not in dispute that the 1st revision petitioner and the 2nd respondent jointly availed loan from the South Indian Bank. It is also not in dispute that due to non repayment of the loan amount, the property was proceeded with and the possession of the property has already been taken over by the Bank. If the property is sold, even the order of injunction passed by the trial court would become infructuous. The 1st revision petitioner is the co-owner of 17 cents of land and building having half share in respect of the property covered by Annexure V document. He has undertaken that he will not sell or encumber his right over the property covered by Annexure V document till the culmination of the proceedings. According to him, his share over the said property would come to more than `1 crore. Since the 1st revision petitioner has offered an alternative suitable property as security, the 2nd respondent cannot insist that the injunction order in respect of B schedule property should continue ignoring the fact that the said property is under threat of sale in the SARFAESI proceedings. If the injunction order is vacated and the B schedule property is sold by private sale to clear off the debts due to South Indian Bank, it will be advantageous not only to the revision petitioners, but also to the 2nd respondent.

In the light of the above findings, this Criminal Revision Petition is disposed of as follows:

(i) The trial court shall dispose of MC No.21/2019 as expeditiously as possible, preferably within a period of three months from the date of receipt of a copy of this order.

(ii) The order of injunction granted by the trial court by relief No.(3) in its order stands hereby vacated.

(iii) The 1st revision petitioner is restrained from alienating his share over the property covered by Annexure V document till the final disposal of the MC.