IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM WEDNESDAY, THE 23RD DAY OF FEBRUARY 2011/4TH PHALGHUNA 1932 WP(C).No. 2268 of 2011 (G) -------------------------- PETITIONER: ------------- NEELAKANTAN, PANACHIKKAL, NEETHA BHAVAN, VEERPAD P.O. KANNUR. BY ADV. SRI.DEVAPRASANTH.P.J. RESPONDENT(S): -------------- 1. THE AUTHORISED OFFICER, ANDHRA BANK, MALABAR TOWERS, CIVIL STATION P.O. KANNUR - 670 001. 2. K.MURALIDHARAN, S/O.KUMARAN NAIR, KARTHIKA BHAVAN, IRUTTY P.O. KANNUR - 670 012. 3. PANICKEN PREMAN, S/O.KUNHIKANNA, KAITHERI PUTHIYIDATH KEEZHAPALLY P.O., KANNUR - 670 015. R2 & 3 BY SMT.S.KARTHIKA R2 7 3 BY SRI.M.S.UNNIKRISHNAN R2 & 3 BY SRI.M.R.ANISON R2 & 3 BY SMT.K.P.GEETHA MANI R1 BY SRI.ABRAHAM MATHEW (VETTOOR) THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 23-02-2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 2268 of 2011 (G) APPENDIX PETITIONER'S EXHIBITS: EXT.P1 : COPY OF THE SA FILED BEFORE THE DRT BY THE PETITIONER ALONG WITH COPY OF DOCUMENTS. RESPONDENT'S EXHIBITS: EXT.R2(A) : COPY OF THE TENDER NOTICE DTD.10.10.2010 EXT.R2(B): COPY OF THE SALE NOTICE DTD.25.1.2010 EXT.R2(C) : COPY OF THE BASIC TAX RECEIPT DTD.31.12.2010 EXT.R2(D) : COPY OF THE POSSESSION CERTIFICATE DTD.6.1.2011 EXT.R2(E) : COPY OF THE BUILDING PERMIT DTD.3.2.2011 //TRUE COPY// P.A TO JUDGE ab C.K.ABDUL REHIM, J --------------------------------------- W.P(C) No.2268 of 2011-G ---------------------------------------- Dated this the 23rd day of February, 2011. J U D G M E N T This writ petition is filed with a prayer for injuncting respondents 2 and 3 from entering into the property, which is allegedly belonging to the petitioner and to restrain the 1st respondent Bank from taking over physical possession of the said property. 2. Case put forth by the petitioner is that the property in question, which was mortgaged to secure a loan availed by the petitioner from the 1st respondent Bank, was sold in a proceedings initiated under the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI Act), which was intimated to him only on 31.12.2010. Challenging the sale, the petitioner had filed 'Securitisation Application' before the Debt Recovery Tribunal and the said application was not registered since copy of the sale certificate or any other documents was not produced. It is further stated that the petitioner had sought for a copy of the sale certificate from the Bank, under the Right to Information Act W.P(C) No.2268 of 2011-G : 2 : and only on receipt of such copy he can pursue the proceedings before the Debt Recovery Tribunal. Under such premise the petitioner is seeking for indulgence of this Court to restrain delivery of possession of the property for a short period, in order to facilitate him to seek appropriate remedy from the Debt Recovery Tribunal. 3. In the counter affidavit filed by respondents 2 and 3 it is mentioned that, the proceedings under SARFAESI Act was initiated as early as in the year 2007 and the 1st respondent Bank had taken over possession of the property under Section 13(4), way back on 22.3.2007, as evident from the publication of the notice under Section 13(4) in a vernacular daily. Thereafter the property was proclaimed for sale as per Ext.P2(a) and the sale was conducted on 10.11.2010. It is further stated that, pursuant to the auction sale, the sale certificate was issued on 25.11.2010 and it was got registered on 20.12.2010 as Document No.5477/2010 of Ulliyil Sub Registry. It is further stated that the auction purchasers have effected mutation in the revenue records and obtained building permit for construction of a residential building. Copies of all relevant documents were produced along with the counter affidavit in order to W.P(C) No.2268 of 2011-G : 3 : substantiate the above contentions. 4. Learned counsel for the 1st respondent Bank also reiterated the above submissions on the factual aspects. It is noticed that on the basis of averments contained in the writ petition, an ad-interim order was issued by this Court on 24.1.2011 directing to maintain status quo with respect to physical possession of the property, subject to condition of the petitioner remitting a sum of Rs.2 lakhs within three weeks from the date of the order. It is submitted by the Senior Counsel appearing on behalf of respondents 2 and 3 and learned standing counsel appearing for the 1st respondent Bank that, under the guise of the ad-interim order issued, the petitioner along with his henchmen had trespassed into the property and caused disturbance to the physical enjoyment of the property by respondents 1 and 2. It is further stated that the respondents 1 and 2 had lodged a criminal complaint against the illegal and forceful actions before the police authorities having jurisdiction in the local area. 5. Considering the facts and circumstances as narrated in the counter affidavit filed on behalf of respondents 2 and 3 as well as the submission made on behalf of 1st respondent, it is W.P(C) No.2268 of 2011-G : 4 : evident that the petitioner had approached this Court suppressing all material facts. Case of the petitioner is that he was not aware of the steps taken for sale of the property and that there was no intimation received with respect to the sale. Further contention of the petitioner is that the Bank did not informed the date of the sale to the petitioner. But it is admitted that the sale was concluded on 20.12.2010. However, it is evident that he has chosen to avail remedy before the Debt Recovery Tribunal only after coming to know about the sale, after the sale was concluded and after the sale certificate was issued. However, with respect to handing over possession of the property, the averments in the writ petition was absolutely incorrect. Under such circumstances, I am of the view that the petitioner is not entitled to any relief in this writ petition, or for any relief availed on the basis of the ad- interim order issued from this Court. However, it is left open to the petitioner to seek remedy from the Debt Recovery Tribunal if any proceedings is maintainable under law. 6. Learned counsel for the 1st respondent submits that eventhough the amounts stipulated in the interim order was remitted through demand draft, the 1st respondent has not so far W.P(C) No.2268 of 2011-G : 5 : enchashed the same. Therefore the 1st respondent is directed to return the Demand Draft to the petitioner. 7. It is made clear that if there is any trespass committed into the property on the basis of the interim order issued by this Court on 24.1.2011, the petitioner need be evicted and the concerned authorities as well as the respondent herein are at liberty to take appropriate steps for the same. It is further made clear that the petitioner will not be entitled to claim any legal right on the basis of such trespass or encroachment, if any made. C.K.ABDUL REHIM JUDGE ab