IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON MONDAY, THE 25TH MAY 2009 / 4TH JYAISHTA 1931 WP(C).No. 11897 of 2009(F) -------------------------- PETITIONER(S): --------------- 1. T.O. JOSEPH @ PAPPU, S/O. OUSEPH, AGED 64 YEARS, THEKKAN HOUSE, KOTTAMAM, NEELESWARAM P.O., KALADY, ERNAKULAM DISTRICT. 2. MARY JOSEPH, W/O. JOSEPH @ PAPPU, AGED 58 YEARS, -DO- BY ADV. SRI.RENNY AUGUSTINE RESPONDENT(S): --------------- 1. THE SUB INSPECTOR OF POLICE, KALADY POLICE STATION, KALADY, ERNAKULAM. 2. THE VILLAGE OFFICER, MALAYATOOR VILLAGE, KALADY. 3. THE SUB REGISTRAR, SREEMOOLANAGARAM SUB REGISTRY, ERNAKULAM DISTRICT. 4. THE ASSISTANT MANAGER LEGAL, THE HONGKONG AND SHANGHAI BANKING, CORPORATION LTD., (HSBC), PULIKKAL ESTATE, M.G. ROAD, ERNAKULAM, KOCHI - 682 016. BY GOVERNMENT PLEADER Mr. BIJOY CHANDRAN ADV. SRI.ADEEP ANWAR FOR R4 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 25/05/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.R.RAMACHANDRA MENON, J. ----------------------------------------------- WP(C) NO. 11897 OF 2009 ----------------------------------- Dated this the 25th day of May, 2009 JUDGMENT The grievance of the petitioners is that the 4th respondent has taken the law into their hands and the property in question was taken over without following the requisite steps under the SARFAESI Act for taking possession of the security property. The petitioners have approached this Court mainly challenging Ext.P1 (Possession notice issued by the 4th respondent) and also Ext.P3 statement/report/letter written by the 4th respondent to the first respondent as to the actual course of events. 2. Taking note of the submissions made by the petitioners in the writ petition, this Court had passed a detailed interim order on 08.04.2009, calling for the report of the Police/1st respondent. 3. Learned Government Pleader placed the report dated 13.04.2009 submitted by the Assistant Sub Inspector of Police, Kalady Police station, along with the Mahazar dated the same day. It appears from the said report that, pursuant to the interim order given by this Court, the lock was given open by the 4th respondent through the security personnel engaged at the premises; whereupon it was found that the WPC NO.11897/2009 2 building was a 'partially completed one' without any electric connection. It is also seen that the building was yet to be numbered by the concerned local authority and there was no furniture in the building, so as to make use of. This being the position, the statement made from the part of the petitioners that the petitioners were residing in this building and that they were forcibly thrown out can't be accepted and as such, no further action pursuant to the report submitted by the Police is found necessary. 4. With regard to the steps stated as taken by the 4th respondent under the relevant provisions of the Securisation Act, it is relevant to note that the loan was actually availed by the deceased son of the petitioner by name 'Jaison', who unfortunately bid farewell to this world, pursuant to an accident occurred on 23.12.2005. It is also seen from Ext.P1 possession notice issued by the 4th respondent Bank that the possession was taken by the 4th respondent on 12.08.2004 in presence of another son of the petitioners by name Byju Joseph who has subscribed his signature as a witness to Ext.P1. It is the said Byju who had preferred Ext.P4 complaint before the first respondent. This being the position, it is difficult to believe that the possession was taken by the 4th respondent taking the law into their hands and since there was no obstruction, there was no need or necessity for the 4th respondent to have availed the remedy prescribed under Section 14 of the SARFAESI Act seeking for the assistance of the WPC NO.11897/2009 3 Chief Metropolitan Magistrate or the concerned District Magistrate, as the case may be. 5. It is submitted from the part of the 4th respondent Bank that the proceedings taken by the 4th respondent under the SARFAESI Act had been challenged by filing appropriate proceedings before the DRT, during the life time of the original borrower (deceased Jaison). Learned counsel for the petitioners submits that the petitioners have approached this Court seeking for appropriate relief with regard to the Court fee payable and such other aspects by filing WP(C) 2529/2004 and that the same is pending. This being the position, there is absolutely no ground to interfere in the matter with regard to the alleged dispute regarding the rights and liberties in connection with the loan transaction, which is admittedly being dealt with separately and hence the prayers are not liable to be entertained. In the above facts and circumstances no interference is called for and the Writ Petition is dismissed accordingly. (P.R.RAMACHANDRA MENON, JUDGE) dnc