IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM FRIDAY, THE 18TH FEBRUARY 2011 / 29TH MAGHA 1932 WP(C).No. 2644 of 2011(E) ------------------------------------ PETITIONER: ------------------- SAJUKUMAR SUSEELAN, KANDAMATHU VEEDU, MANDAPATHIN KADAVU, OTTASEKHARAMANGALAM, THIRUVANANTHAPURAM-695 125. BY ADV. SRI.C.K.MOHANAN. RESPONDENTS: ------------------------ 1. AIG HOME FINANCE LTD., KRISHNA BUILDINGS, BAKERY JUNCTION, THIRUVANANTHAPURAM, REP.BY ITS COLLECTION OFFICER, PIN 695 001. 2. AIG HOME FINANCE LTD., KRISHNA BUILDINGS, BAKERY JUNCTION, THIRUVANANTHAPURAM, REP.BY ITS AUTHORIZED OFFICER, PIN- 695 001. 3. ASHOK P.NAIR, ADVOCATE, ANUPAMA BUILDINGS, PATTOOR ROAD, VANCHIYOOR P.O., THIRUVANANTHAPURAM-695 035. 4. PRIYA R.S., ADVOCATE, C/O.ADV.K.B.PANDARATHIL, OPP.VANCHIYOOR POLICE STATION, VANCHIYOOR, THIRUVANANTHAPURAM-695 035. 5. S.I.OF POLICE, ARYANKODU POLICE STATION, THIRUVANANTHAPURAM-695 125. 6. RESERVE BANK OF INDIA, NEW DELHI, REP.BY THE GOVERNOR-110 001. W.P.(C). NO.2644/2011-E: 7. DIRECTOR GENERAL OF POLICE, (LAW & ORDER), POLICE HEADQUARTERS, THIRUVANANTHAPURAM-695 001. 8. AIG HOME FINANCE LTD., HEAD OFFICE, NEW DELHI, REP.BY ITS MANAGING DIRECTOR, PIN- 110 001. R1, R2 & R8 BY ADV. SRI.RAJESH THOMAS, S.C, THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 18/02/2011,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: prv. C.K.ABDUL REHIM, J. ------------------------------------------- W.P.(C).No.2644 of 2011 ------------------------------------------- Dated this the 18th day of February, 2011 J U D G M E N T ---------------------- The writ petition was filed on a premise that the Advocate Commissioner appointed by the Chief Judicial Magistrate Court, Thiruvananthapuram, had dispossessed the petitioner and his family members from their residential house, which is not situated within the immovable property mortgaged for securing the loan from respondents 1 and 2. 2. According to the petitioner, in fact the property mortgaged was already proceeded against by invoking Section 13(4), and the approach now made before the CJM court itself was totally unnecessary. It is the further allegation that the petitioner was evicted from the residential building, only as part of a collusive attempt made by the respondents 1 and 2 in connivance with the Advocate Commissioner appointed by the CJM court. 3. When this writ petition was entertained, the standing counsel who entered appearance on behalf of respondents 1, 2 and 8, was directed to get instructions. It was submitted before this court that only due to a mistaken identity of the property, W.P.(C).2644/11 -2- the Advocate Commissioner had dispossessed the petitioner and in fact the property mortgaged situates adjoining to the property wherein the residential building is contained. However, since it was conceded that the dispossession was on the basis of a mistaken identity, this court had issued a direction on 3.2.2011 to hand over possession of the property back to the petitioner. It is reported that the petitioner was put in possession of the residential house which was mistakenly dispossessed. 4. Learned counsel for petitioner made vehement submissions that, it is a fit case where heavy compensation need be awarded against the respondents, since a collusive attempt was made to dispossess the petitioner from his residential house in order to coerce for payment of amounts due, or with a malafide intention to grab the property in question and to conduct sale of the same. Such allegations are stoutly refuted by the standing counsel for respondents 1, 2 and 8. 5. The questions as to whether the petitioner had suffered any loss and as to whether there was any willful or collusive act on the part of the respondents are matters which need adjudication on the basis of factual aspects and evidence. I am of the view that such an adjudication could not be entertained in this proceedings which is filed under Article 226 W.P.(C).2644/11 -3- of the Constitution of India. Therefore I am of the opinion that this writ petition can be closed leaving rights if any available to the petitioner to take appropriate legal actions with respect to the dispossession effected, and also on the basis of loss or damages if any sustained to the petitioner due to such action. Of course, if any such action is taken, the respondents will be at liberty to resist the same in accordance with the procedure prescribed under law. 6. Therefore the writ petition is disposed of in view of the submissions regarding re-possession of the building, reserving rights of the petitioner if any available under law to agitate the issue regarding claim for compensation, before the appropriate forum. C.K.ABDUL REHIM, JUDGE. okb