IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON TUESDAY, THE 2ND FEBRUARY 2010 / 13TH MAGHA 1931 WP(C).No. 33294 of 2009(F) -------------------------- PETITIONERS: --------------- 1. SHIHAB, AGED 29 YEARS, S/O.KUNHU MUHAMMED, PROPRIETOR, COCHIN BAKERY, BUILDING NO.E.P.NO.VII/42B OF EZHUPUNNA PANCHAYATH CHERTHALA, RESIDING AT RAHMATH MANZIL, AROOR MURI, CHERTHALA, ALAPPUZHA. 2. NISHAD, AGED 43 YEARS, S/O.KUNHU MUHAMMED, PROPRIETOR, VELLEZHATH TRADERS BUILDING NO.E.P.NO.VII/42C OF EZHUPUNNA PANCHAYATH CHERTHALA, RESIDING AT VELLEZHATHU, NADUVATH NAGAR P.O., CHERTHALA. BY ADV. SRI.B.PRAMOD RESPONDENTS: --------------- 1. THE AUTHORISED OFFICER, UCO BANK, WELLINGTON ISLAND, KOCHI. 2. UCO BANK, WELLINGTON ISLAND BRANCH, KOCHI REPRESENTED BY ITS MANAGER. 3. K.T.UNNIKRISHNAN, KUNCHENVELIYIL, ERAMALLOOR P.O., CHERTHALA. 4. ASHLEY NAIR, ADVOCATE BAR ASSOCIATION, DISTRICT COURT, ALAPPUZHA. R1 AND R2 BY ADV. SRI.GEORGE KARITHANAM VARGHESE BY ADV. SRI.C.I.ABRAHAM BY ADV. SRI.JOSE KURIAKOSE (VILANGATTIL) THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 02/02/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.R. RAMACHANDRA MENON, J. .............................................................................. W.P.(C) No. 33294 OF 2009 ......................................................................... Dated this the 2nd February , 2010 J U D G M E N T The petitioners are stated as the tenants of the owner of the property in question, over which security interest was created by the owner, in connection with a loan availed from the respondent Bank. The borrower, however did not repay the amounts in time, under which circumstances, there was no other alternative for the Bank, but to proceed with further steps invoking the machinery under the SARFAESI Act. It is not revealed whether the owner of the property in question, who is the principal borrower, has challenged the action pursued by the respondent Bank. The grievance of the petitioners is that they are the tenants in the premises and hence are not liable to be evicted because of the action being pursued by virtue of the landlord being a defaulter before the Bank. 2. The essential question to be considered is whether the petitioners who are the tenants have a better right than the landlord/owner of the premises in question. It also remains to be W.P.(C) No. 33294 OF 2009 2 a fact that the owner of the property had borrowed the amount from the respondent Bank and then turned to be a defaulter. The right of the secured creditor under such circumstance, to proceed against the property in question, stands intact by virtue of the specific provisions under the statute; including the overriding effect given under Section 35 of the Act. That apart, there is no case for the tenants that they are willing to satisfy the liability towards the Bank and that the amount so to be paid by the tenants should be given credit to, with respect to the rent payable by such persons to the landlord, to continue the tenancy. So also, when the property is subjected to sale, the petitioners are very much at liberty to participate in such auction and to bid the property in their favour, if they so desire . 3. Since the petitioners have not opted to clear the liability either by directly approaching the bank or by participating in the public auction to be conducted, the attempt now being made, by approaching this Court cannot but be held as a step to continue the tenancy by protracting the matter at the risk and cost of the respondent Bank. W.P.(C) No. 33294 OF 2009 3 4. In view of the observations made herein before, the rights and interest of the secured creditor stand on a higher pedestal and because of the overriding provisions incorporated in the Statute, this Court does not find any merit or bonafides in the contentions raised in this Writ Petition. No interference is called for. The Writ Petition is dismissed accordingly. P.R. RAMACHANDRA MENON, JUDGE. lk