AI Drafter 
TaxTMI 
TaxTMI 
2026 (1) TMI 267
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....ey of lands and the settlement of boundary disputes, had legislated Act No. 37 of 1961 i.e., The Kerala Survey & Boundaries Act, 1961. The said provides for conducting of the surveys, which includes all operations and incidental actions, which are required to be taken for the purposes of determination, measurement and recording of the boundaries or even any part of the boundary of the land. The powers of conducting the 'survey' as defined under Section 2(vi) of the Act No. 37 of 1961, have been vested with the individual officer named as "survey officers", which has been defined under Section 3 of the Act. The provisions of the aforesaid act are self-contained, which contemplate that, the demarcation can be done with regards to the land in accordance with the provisions contained under Chapter II of the said Act. 2) The controversy in the two instant Company Appeals are given below: (1) Company Appeal (AT)(CH)(Ins) No. 183/2025, challenges the Impugned Order as it was passed on 04.11.2025, in MA(IBC)/01/KOB/2024 in IBA/04/KOB/2020. By virtue of the Impugned Order, the application thus preferred, to set aside the sale certificate and also to direct the Liquidator to coop....
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....rator Sales and Services Pvt. Ltd. in his capacity as a guarantor had mortgaged 22 Ares of land in Resurvey No.240/31-1 and 4.86 Ares in Resurvey No.240/33-43 in favour of the Appellant IDBI Bank Ltd., (ii) Appellant on 18.09.2018 took possession of the aforesaid assets under SARFAESI proceedings. (iii) On 21.12.2021 M/s. Mathsraman Manufacturers & Traders Pvt. Ltd. was ordered to be liquidated. (iv) On 17.03.2023, the Appellant by an email requested the liquidator not to proceed against the said mortgaged property. (v) On 11.08.2023 Appellant moved CJM Court, Kottayam u/s 14 of SARFAESI Act seeking assistance of Advocate Commissioner to take over physical possession of the secured assets. (vi) On 12.10.2023 Advocate Commissioner filed an interim report seeking assistance of village officer & taluk surveyor for physical identification of the said assets. (vii) On 14.11.2023 Liquidator/1st Respondent sold 29.29 Ares in Resurvey Nos.240/30 and 240/31 in Block-23 of Vijayapuram Village and issued sale certificate. (viii) The Appellant filed 2 applications in MA(IBC)/01/KOB/2024 and MA(IBC)/06/KOB/2024, to set aside the sal....
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....the property, viz. 29.29 Ares in Resurvey Nos.240/30 and 240/31 in Block 23 of Vijayapuram village, Kottayam Taluk, Kottayam District, forming part of the liquidation estate only after identifying and demarcating the same with the assistance of the Taluk Surveyor and the Village Officer. c. Pass appropriate orders/directions under Section 60(5) of the Insolvency and Bankruptcy Code, 2016 read with Rule 11 of the National Company Law Tribunal Rules and any other applicable provisions of the Insolvency and Bankruptcy Code, 2016 read with relevant regulations directing the first respondent to exclude the property mortgaged to the applicant, viz., 26.86 Ares made up of 22 Ares in Resurvey No. 240/31- 1 and 4.86 Ares in Resurvey No. 240/33-43 in Block 23 of Vijayapuram village, Kottayam Taluk, Kottayam District, which does not form part of the liquidation estate. d. Pass any such order/s as this Honourable Tribunal may deem fit in the interest of justice." 7) Admittedly, the Appellant is not a party to the proceedings, in the Company Petition which was pending consideration before the Learned Adjudicating Authority. The interlocutory applications thus preferred....
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.... preferred before the Learned Adjudicating Authority, for the reason being that, the Appellant's rights to claim or even to appeal against the survey for an identification or demarcation of the property, stands saved by the provision of the Kerala Survey and Boundaries Act, 1961, which has not been invoked by the Appellant at any point of time nor there is any material which has been on record in both the Company Appeals, to show the same, when the Appellant faced with the problem of an identification of the property alleging and suspected that, the mortgaged property was being sold by including the same in the liquidation estate. In that eventuality, the Appellant has to blame himself for having not resorted to the remedies which were available to him under law. It is to be acknowledged that survey and demarcation of land requires a particular expertise and skill set it needs to be carried, by officials having the expertise available and the liquidator, could not have alternatively exercise the power of the Taluk surveyor for identifying the land. It is not an authority vested with the liquidator to identify the property and that is the reason why the observation has been made in ....
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....for demarcation, hence, he has to blame himself for his inability to resort to the appropriate remedies at an appropriate given time, available to him under law, rather the Appellant indirectly intends to impose the responsibility on the liquidator to demarcate and identify the land which is not within the powers vested with the liquidator under the I & B Code. 11) The platform of the Learned Adjudicating Authority, or consequently this Tribunal cannot be utilised by the appellant for the purposes of conferring a jurisdiction on the liquidator, which is otherwise not permissible under law and which is saved to be vested to be exercised by the authority constituted under a special statute i.e., Act of 1961, for conduct of survey and for demarcation or identification of land. 12) There could be yet another aspect, which is required to be observed and considered at this juncture, which is that an action involving demarcation and survey of any land always entails in itself an adjudication of a Civil right of a person over the property, which has to depend upon an appreciation of fact and law which has to be undertaken by experts in the field, which under no set of circumstances c....