IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM THURSDAY, THE 9TH DECEMBER 2010 / 18TH AGRAHAYANA 1932 WP(C).No. 32097 of 2010(J) -------------------------- ( CRMP.5149/2009 of C.J.M.,THRISSUR) .................... PETITIONER: ------------------ ACM SHAUKATH, S/O.A.C.MOHAMMED ALI, ANDATHOT CHALIL HOUSE, BABY ROAD, THIRUVGATHARA.P.O., CHAVAKKAD, THRISSUR. BY ADV. SRI.DILIP J. AKKARA RESPONDENTS: -------------------- 1. STATE BANK OF INDIA, REP.BY AUTHORISED OFFICER, CHIEF MANAGER (RCPC), REGIONAL BUSINESS OFFICE, BHARATHAKSHEMAM BUILDING, ST.THOMAS COLLEGE ROAD, THRISSUR-5. ADDL. R2 TO R5 IMPLEADED ----------------------------------------- ADDL.R2. FATHIMA, W/O.A.C.MOHAMMED ALI, ANDATHOT CHALIL HOUSE, BABY ROAD, THIRUVGATHARA P.O., CHAVAKKAD, THRISSUR PIN 680 506. “ R3. A.C.SUBAIR, S/O.A.C.MOHAMMED ALI, ANDATHOT CHALIL HOUSE, BABY ROAD, THIRUVGATHARA P.O., CHAVAKKAD, THRISSUR PIN 680 506. “ R4. A.M.AMEER, .A.C.MOHAMMED ALI, ANDATHOT CHALIL HOUSE, BABY ROAD, THIRUVGATHARA P.O., CHAVAKKAD, THRISSUR PIN 680 506. “ R5. SABEENA,W/O.A.C.M.SHAUKATH ANDATHOT CHALIL HOUSE, BABY ROAD, THIRUVGATHARA P.O., CHAVAKKAD, THRISSUR PIN 680 50 6. R2 TO R5 IS IMPLEADED AS PER ORDER DATED 2.12.10 IN IA 16714/10. WP(C).No. 32097 of 2010(J) ----------------------------------------- R1 BY ADVS. SRI.K.K.CHANDRAN PILLAI, SENIOR ADVOCATE SRI.A.S.SAJUSH PAUL ADDL. R2 TO R5 BY ADV. SRI.B.V.BALAKRISHNAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 09/12/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: VK C.K. ABDUL REHIM, J ------------------------------- WP(C) NO. 32097 OF 2010 ------------------------------------- Dated this the 9th day of December, 2010 JUDGMENT This Writ Petition is filed challenging proceedings initiated under Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI Act). Consequent to default committed in repayment of loan availed by the petitioner from the first respondent Bank property belonging to respondents 2 to 5, which was mortgaged and which contains a residential house in which the petitioner is living with his family, was already taken over possession by the first respondent, on invoking provisions under Section 14(1), as per order of the Chief Judicial Magistrate Court. The Advocate Commissioner appointed from that Court had taken over possession of property after sealing the residential building, on 14.10.2010. 2. According to the petitioner property in question was taken over possession in an illegal manner and the 2 WP(C) No. 32097/2010 eviction was made without giving sufficient opportunity to the inmates of the house to vacate the premises, after taking their valuable movables and documents. According to the petitioner, he is residing therein along with two of his brothers and their family, along with their aged and sickly mother. It is stated that they were now thrown out from the residence and became totally helpless. 3. It is conceded by the petitioner that during January, 2010, he had approached this Court when coercive steps for taking over possession of property was pursued, on issuing notice by the Advocate Commissioner. Ext.P2 is the judgment of this Court in WP(C) 30483/2009. The Writ Petition was disposed of directing the petitioner to make payment of a sum of Rs.5 lakhs before 31.01.2010 and the petitioner was directed to approach the Bank seeking settlement with respect to the balance amount. According to the petitioner he had paid a sum of Rs.4,70,050/- pursuant to Ext.P2 judgment. Exts.P3 and P4 are copies of 3 WP(C) No. 32097/2010 the receipts, produced in this regard. Ext.P7 is the notice issued by the Advocate Commissioner before taking over possession of the property. Considering the pathetic situation of the petitioner and his family members and relatives, indulgence of this Court was sought for permitting reoccupation of the building for the purpose of their residence. 4. A detailed statement was filed by the first respondent in which the very maintainability of the Writ Petition itself was disputed. It is pointed out that, in the Writ Petition which culminated in Ext.P2 judgment, the petitioner had challenged the very same notice issued by the Advocate Commissioner and the petitioner failed to comply with the conditions stipulated by this Court. Therefore it is contended that the petitioner could not be permitted to file another Writ Petition seeking the very same reliefs. 5. It is further pointed out that a third person had 4 WP(C) No. 32097/2010 approached this Court by filing WP(C)27088/2010 contending that he had already obtained an order of attachment from a Civil Court against the property and therefore the Bank should be restrained from proceeding with sale of the property, which will eventually defeat his interest. It is noticed that above Writ Petition was dismissed by this Court through judgment dated 02.09.2010 (Annexure 4 produced along with the statement) making it clear that the petitioner therein will be at liberty to proceed against the first respondent Bank as permitted under law, for realizing excess amount if any received by sale of the property in question. 6. It is further stated that the above said judgment was challenged in Writ Appeal and in Annexure 5, the Division Bench had disposed of the Writ Appeal 1556/2010 observing that the first respondent Bank shall issue sale notice and that the appellant will be at liberty to arrange a purchaser to participate in the auction sale of the property 5 WP(C) No. 32097/2010 in question. 7. It is contended by learned senior counsel appearing for the first respondent Bank that the loan in question was availed as early in the year 2005 and that all sort of tatics were being opted to restrain the recovery steps. It is pointed out that even after invoking Section 14(1), the proceedings were delayed considerably due to the interventions attempted by the petitioner and others through different cases filed before this Court. It is also pointed out that with respect to other property belonging to one of the guarantors, the Bank could not take effective steps since the guarantor had obtained a judgment from this Court to the effect that the Bank shall first proceed against property which is subject matter of this Writ Petition. 8. Considering the facts and circumstances as stated above and the rival contentions raised, I am not at all inclined to entertain this Writ Petition on the merits of any 6 WP(C) No. 32097/2010 of the contentions raised. However, considering the limited prayer raised by learned counsel for the petitioner for permitting re-occupation, an interim order was issued on 25.11.2010 directing the petitioner to make payment of a sum of Rs.5 lakhs to show his bonafides with respect to the limited prayer. On the basis of directions issued by this Court, the petitioner had impleaded respondents 2 to 5 who are the owners of the property in question and who are the family members of the petitioner. Respondents 2 to 5 are represented through a counsel and the relief if any granted will be binding them also. 9. Eventhough learned senior counsel appearing for the first respondent Bank opposed the relief of putting possession of the house by the petitioner, I am of the considered opinion that indulgence can be shown in granting relief to the limited extent subject to condition insisting for payment of the balance amount within a short time. 7 WP(C) No. 32097/2010 10. Therefore the Writ Petition is disposed of directing the first respondent to permit the petitioner to occupy the building contained in the property which has already been taken over possession, for the limited purpose of residence of the petitioner and his family members, on the petitioner remitting a further sum of Rs.2 lakhs on or before 10.01.2011. 11. The re-occupation shall be permitted as and when the payment is made and on the petitioner furnishing an affidavit before the first respondent to the effect that he will handover vacant possession with the key of the house to first respondent, in case of default in payment of the balance amount within the time as stipulated in this judgment. 12. The petitioner shall make payment of the entire balance amount along with interest and expenses if any due in 6 (six) equal monthly instalments falling due on or before 31.01.2011 and on or before the last day of the succeeding 8 WP(C) No. 32097/2010 months. Needless to say that the first respondent will keep in abeyance all further steps of sale of the property in case the arrears of payment is cleared as directed above. 13. It is made clear that the direction for permitting re-occupation issued herein is subject to the condition that the first respondent will be at absolute liberty to continue legal possession of the property as well as the residence situated therein, and that they will be at liberty to vacate the petitioner or anybody else who is in occupation of the house without recourse to any legal procedure and if necessary with the assistance of police authorities having jurisdiction over local area. 14. It is made clear that on the event of default in payment of any one of the instalments as stipulated above, the respondent will be free to proceed with further steps for sale of the property. It is also made clear that the relief granted above will be subject to condition that the petitioner as well as respondents 2 to 5 are restrained from 9 WP(C) No. 32097/2010 approaching any Court or other authority with respect to any proceedings initiated by the first respondent. C.K.ABDUL REHIM, JUDGE dnc