IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN THURSDAY, THE 11TH DECEMBER 2008 / 20TH AGRAHAYANA 1930 WP(C).No. 33473 of 2008(I) -------------------------- PETITIONER(S): --------------- V.SANAL KUMAR R.V.VIHAR, PRAVACHAMBALAM, NEMOM PO., BY ADV. SRI.L.MOHANAN RESPONDENT(S): --------------- 1. DISTRICT COLLECTOR, THIRUVANANTHAPURAM 2. STATE BANK OF INDIA, KOTTUKAL BRANCH, THIRUVANANTHAPURAM REP. BY ITS MANAGER. 3. P.VINOD KUMAR, ADVOCATE ENFORCEMENT AGENT , SBI TC.28/1377, SIVA KRIPA SREEKANTESWARAM, THIRUVANANTHAPURAM. 4. SI OF POLICE, BALARAMAPURAM. 5. MOHAMMED KANNU, PANAVILAKATHU VEEDU BALARAMAPURAM,TRIVANDRUM 6. SREEKANTH, WHILE HOUSE, THANNIVILA, VEDIVACHANKOVIL PO., PALLICHAL,NEYYATTINKARA TALUK, TRIVANDRUM. R1, R4 BY GOVT. PELADER SRI.K.C.SANTHOSH KUMAR R2 BY ADV. SRI.P.V.SURENDRANATH R5 BY ADV.SRI.G.SUDHEER THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 11/12/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOTTATHIL B.RADHAKRISHNAN, J. ------------------------------------------- W.P(C).No.33473 OF 2008 ------------------------------------------- Dated this the 11th day of December, 2008 JUDGMENT Heard. 2. The petitioner has filed this writ petition challenging certain proceedings taken under the SARFAESI Act by the second respondent on account of a loan availed by the 6th respondent. 3. The 6th respondent availed the loan and started business. 5th respondent is the Power of Attorney holder and father of the owner of a building, in which, the 6th respondent was carrying on his business, to the knowledge of the bank. Therefore, the bank, in exercise of authority under the SARFAESI Act sealed that premises because the stock-in-rate was pledged to the bank. The petitioner says that he is in occupation of that building. The 5th respondent has filed an affidavit, following earlier orders, stating that on the strength of Ext.R5(a) Power of Attorney of his WPC.33473/08 Page numbers daughter Rani, dated 7.5.2005, the shop rooms with No.PP VI 1177 to 1180 were purchased in the name of his daughter in November, 2005. Those rooms were leased out to the 6th respondent in January, 2006. He further states that on 14.4.2008, the 6th respondent vacated the premises and handed over vacant possession of those rooms to the 5th respondent. Following that, the 5th respondent leased out those rooms and two other rooms to the petitioner on 21.4.2008 as per Ext.P1 lease deed. These facts are not disputed by the 6th respondent who does not ever appear following service of notice by special messenger. 4. In the aforesaid circumstances, three factors are quite clear. The bank had security interest only over the stock-in-rate in the rooms in question; the dispute is as to whom the goods that are now available in the rooms belong and the bank does not have any right over the title to the rooms or the lease hold right. Therefore, the issues to be resolved would the title to the goods WPC.33473/08 Page numbers in the shop rooms and any other rights referable to the claims of the petitioner. 5. Having regard to the aforesaid, it is ordered that the bank shall, within a week from now, remove the entire goods from the premises in question in the presence of the petitioner, on proper mahazar and with copy to the petitioner and also in the presence of two respectable local witnesses. The bank will be at liberty to deal with that property subject to what is stated hereunder: The petitioner will be at liberty to sue the bank and any other appropriate defendant before the civil court to establish his right to those goods and for any other reliefs permissible and available in accordance with law. The bank shall, on removal of goods within the aforesaid time limit, hand over possession of the shop rooms to the petitioner. Even if the bank claims any lease hold right, that shall, in no manner, be put to keep the petitioner out of possession and the bank will have to work out its remedies elsewhere, in accordance with law, to realise WPC.33473/08 Page numbers amount, if any, that may be referable to that lease hold right. The writ petition is ordered accordingly, leaving open all other contentions. Sd/- THOTTATHIL B.RADHAKRISHNAN, Judge. kkb.