Kerala Court November 2010 Judgments
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Alocious Fernandez Vs. J.Moosa Morais
Court: Kerala
Decided on: Nov-29-2010
O R D E R THOMAS P.JOSEPH, J. ==================================== O.P(C) No.508 2010 ==================================== Dated this the 29th day of October, 2010 J U D G M E N T At a time when the suit property identified by the Advocate Commissioner in the plan appended to the decree in O.S. No.343 of 2008 of the court of learned Munsiff, Neyyattinkara was ordered to be delivered to the respondents on 01.11.2010 petitioners have come up with this petition complaining that their appeal against the ex parte judgment and decree which is under execution has not so far been disposed of by the learned Sub Judge, Neyyattinkara and the application for stay filed in the appeal is not disposed of. Respondents filed O.S. No.343 of 2008 for declaration of their title and recovery of possession of the property while petitioners filed O.S. No.426 of 2008 for a declaration of their title and possession. On account of their absence when the case was posted, O.S. No.343 of 2008 was decree ex parte a...
P.R. Raman. Vs. State of KeralA.
Court: Kerala
Decided on: Nov-29-2010
1. In this Revision Petition filed under Section 397 read with Sec. 401 Cr.P.C. the petitioner, who was the accused in S.T.No.753/2008 on the file of the Chief Judicial Magistrate, Palakkad, challenges the conviction entered and the sentence passed against him for an offence punishable under Sec. 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as 'the Act'). The cheque amount was `75,000/- (Rupees seventy five thousand only). The compensation ordered by the lower appellate court is `75,000/- (Rupees seventy five thousand only). 2. I heard the learned counsel for the Revision Petitioner and the learned Public Prosecutor. 3. The learned counsel appearing for the Revision Petitioner re-iterated the contentions in support of the Revision. 4. The courts below have concurrently held that the cheque in question was drawn by the petitioner in favour of the complainant, that the complainant had validly complied with clauses (a) and (b) of the proviso to Section 138 of the A...
Aravindakshan. Vs. Jayarajan Nair.
Court: Kerala
Decided on: Nov-29-2010
1. The following substantial questions of law are formulated in the appeal. i) Can a court of law refuse to pass a decree declaring the sale deed as null and void when the suit itself was filed by the rightful owner after attaining majority in respect of a sale of his property by a third person/guardian unless it is established that the sale was necessitated for the family necessity and for minors-good by the assignees? ii) Once the sale of a property which is proved to have been done by the guardian on behalf of the minors was attacked by the minors after attaining majority is the burden of proof still continues to be on the plaintiff? iii) Is it not the burden shifted to the defendants - the assignee of the property of a minor -when it is established that the minor's property has been sold by the guardian to a third party on the ostensible ground of family necessity? 2. The transposed plaintiff in O.S.No.5/1981 on the file of the Munsiff Court, Tirur is the appellant. The appeal is d...
Elizebeth Meenas. Vs. the State Bank of IndiA.
Court: Kerala
Decided on: Nov-29-2010
1. Challenge in this writ petition is against coercive steps initiated under the provisions of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI Act). Consequent to default committed in repayment of a housing loan availed by the petitioner from the respondent Bank, proceedings was initiated against the immovable property, which is the secured asset. Ext.P4 notice is issued under Section 8(1) of the Security Interest (Enforcement) Rules 2002 intimating the steps taken as contemplated under Section 13(4) of the Act. 2. It is noticed that the petitioner has not resorted to the statutory remedy available, at any stage of the proceedings. Therefore in view of the dictum laid by the Hon'ble Supreme Court in United Bank of India V Sathyawati Tondon & others (2010(8) SCC 110) this Court is not justified in interfering with the proceedings. 3. However, as a gesture of indulgence, when the matter came up for consideration on 6.8.20...
Manherikandi Damodaran. Vs. Kooven Vijayan.
Court: Kerala
Decided on: Nov-29-2010
1. Power of executing court to grant the reliefs it has granted in this case, according to the learned counsel for petitioner in the absence of specific relief granted in that line in the decree is under challenge in this revision at the instance of judgment debtor No.1/defendant No.1. 2. Respondent Nos.1 and 2/plaintiffs filed O.S.No.327 of 1982 for a decree for injunction to restrain petitioner and other defendants including respondent Nos.3 to 5/defendant Nos.7 to 9 from interfering with their right as trustees for management of the temple and conduct of poojas therein. Though the suit was resisted and the trial court dismissed the same, appellate court granted a decree in favour of respondent Nos.1 and 2 as follows: "i. that respondents 1 to 9 (D1 to 9) have no right over the Pambadi Alinkeezhil Temple or its properties also they have no right to manage the same. ii. Respondents are restrained by an order of permanent injunction from interfering with the right of the trustees of th...
K.Venugopal. Vs. Fast Track Assessment Team No.iii.
Court: Kerala
Decided on: Nov-29-2010
1. Petitioner is challenging assessments completed under the provisions of Section 17 D of the Kerala General Sales Tax Act with respect to the years 2002-03, 2003-04 and 2004-05. According to the petitioner the business was stopped in the year 2005 and the petitioner was suffering from acute heart disease. Ext.P4 medical certificate produced will indicate that during March, 2010, he was hospitalized at St.Thomas Mission Hospital, Kattanam. 2. According to the petitioner he has got all the required Form 25 declarations in order to support the claim for exemption and if such documents were reckoned there will not be any further liability for payment of tax. However it is conceded that the petitioner had received the pre-assessment notices. But due to his ailment he could not make any appropriate response at that time, is the submission. It is evident from Exts.P8 to P10 orders that the pre-assessment notices were duly served on the petitioner. But he had failed to submit any objections ...
Anton Amjith Verithas. Vs. the State of Kerala, and Others.
Court: Kerala
Decided on: Nov-29-2010
1. The petitioner has approached this court seeking the following:- "I) to issue a writ of mandamus or any other appropriate writ, order or direction directing the respondents not to harass the petitioner by maintaining a rowdy history sheet in his name without any basis. ii) To call for the records leading to Ext.P3 and quash the same by issuing a writ of certiorari or any other appropriate writ, order or direction. iii) Issue a writ of mandamus or any other appropriate writ, order or direction directing the respondents to close all proceedings initiated against the petitioner for treating him as a rowdy in the records of the Kanjikuzhy Police Station in Idukki District". 2. The case of the petitioner in brief is as follows. The petitioner is a permanent resident of Venmani in Thodupuzha Taluk of Idukki District. He and his family members were implicated in criminal cases by the Kanjikuzhy Police at the instance of a police officer then in charge of the said police station. All crimin...
M.Sarasan. Vs. the Authorised Officerthe.
Court: Kerala
Decided on: Nov-29-2010
1. The petitioner had availed 3 distinct financial assistances- a housing loan, a cash credit facility and a personal loan- from the respondent bank. Consequent to default committed in repayment of amounts due under the loan accounts, proceedings under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI Act) was initiated and the immovable property, which is the secured asset, was sought to be taken over possession. Invoking Section 14(1), the respondent had approached the Chief Judicial Magistrate Court, Kollam and an Advocate Commissioner was appointed to take over possession of the property. 2. According to the petitioner he had approached the bank seeking regularisation of the account by offering payment of the amounts in default. But without acceding to such request coercive steps of recovery for dispossessing the petitioner was being pursued. Hence this writ petition is filed. 3. Learned Standing Counsel appearing for...
Jose. Vs. Antony.
Court: Kerala
Decided on: Nov-29-2010
1. Defendants in OS.No.291/2001 on the file of the Principal Munsiff's Court, Irinjalakuda are the appellants. The order of remand passed by the Principal Sub Court, Irinjalakuda in A.S.No.37/2009 is under challenge. 2. The respondent herein as plaintiff filed the suit for perpetual prohibitory injunction. Admittedly, the plaint a schedule property belongs to the plaintiff. It is the plaintiff's case that plaint B schedule is the way provided to plaint A schedule and other items of properties in the partition deed. The parties are near relatives. The property was partitioned in the year 1966. The plaintiff's mother and the defendants' predecessors are parties to the partition deed. It is also the plaintiff's case that B schedule is the way ear-marked for ingress and egress to plaint a schedule property and that it starts from the Panchayat road towards east and leads to the plaintiff's property and the property of the defendants on the east of the plaint a schedule property. 3. The def...
N.M. Saju S/O. Mathai. Vs. the Village Officer.
Court: Kerala
Decided on: Nov-29-2010
1. Matter arises under the Kerala Building Tax Act, 1975. According to the petitioner the building in question which is assessed under the provisions of the Act, is only a temporary structure, which will not fall within the description of 'Building' defined under Section 2(e) of the Act. On an earlier occasion, when a non speaking order of assessment was issued against the petitioner, he had approached this court and in Ext.P1 judgment this court directed the assessing authority to consider the matter afresh and issue a speaking order of assessment, after affording a personal hearing to the petitioner. It is noticed that the assessing authority had confirmed the original assessment holding that the building in question is liable to be taxed as one coming within the description of 'Building' defined under Section 2(e). 2. Aggrieved by the assessment the petitioner had preferred statutory appeal which was dismissed through Ext.P3 order confirming the assessment. Aggrieved by Ext.P3, the ...
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