IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN MONDAY, THE 22ND SEPTEMBER 2008 / 31ST BHADRA 1930 WP(C).No. 27109 of 2008(B) --------------------------------------- PETITIONER: ------------------- JACOB THOMAS, 41 YEARS, S/O. THOMAS, ARAKKAPARAMBIL HOUSE, 1/3, POOMANGALAM VILLAGE, ARIPALAM P.O., TRICHUR - 680 688 BY ADV. SRI.MATHEW SKARIA. RESPONDENTS: ----------------------- 1. UNION BANK OF INDIA, REPRESENTED BY THE AUTHORISED OFFICER/CHIEF MANAGER, 239, VIDHAN BHAVAN MARG, MUMBAI 400021. 2. THE BRANCH MANAGER, UNION BANK OF INDIA, IRINJALAKUDA BRANCH, TRICHUR DISTRICT. 3. THE DISTRICT MAGISTRATE/ THE DISTRICT COLLECTOR, THRISSUR DISTRICT. 4. JOSEPH XVIER ANTHRAPPER, 48 YEARS, S/O. XAVIER, 1/185 MUTTAM, THAIKATTUKARA P.O., ALUVA - 683106 R1 & R2 BY ADV. SRI. A.S.P. KURUP, S.C, U.B.I. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 22/09/2008,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: prv. THOTTATHIL B. RADHAKRISHNAN, J. = = = = = = = = = = = = = = = = = = = = = = = = W.P.(C).No.27109 of 2008-B = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 22nd day of September, 2008. JUDGMENT 1.The petitioner challenges action for dispossession under the SARFAESI Act. Going by his version, the 4th respondent purchased an item of property from the petitioner on 27-7-2005 and later executed Ext.P1 lease deed by which the petitioner was put in possession of that building as a tenant. The 4th respondent availed certain facilities from the 1st respondent bank and defaulted in repayment. That led to the impugned proceedings under the SARFAESI Act and the competent authority under Section 14 has issued orders to ensure physical dispossession. The petitioner contends that as a tenant, he is entitled to the benefit of Act 2/1965 and pleads that the provisions of the said Act have an overriding effect on the provisions of the WP(C)27109/2008 -: 2 :- SARFAESI Act. 2.The learned counsel for the bank stated that the petitioner and the 4th respondent are actually involved in a fraudulent exercise of depriving the 1st respondent, a public sector bank from reaching at amounts due to it and that the petitioner had given in writing that he will give vacant possession, though he was found to be in possession while dispossession proceedings were taken up. 3.The submission on behalf of the bank is attempted to be contradicted by the learned counsel for the petitioner pointing out that faced with the distress action of physical dispossession, the petitioner was coerced to execute whatever is projected as an understanding. 4.The learned counsel for the petitioner graciously showed me the original of Ext.P1 when I asked for it. I have perused it. There are erasions and WP(C)27109/2008 -: 3 :- corrections in Ext.P1. As it now stands, it is shown to have been drawn up in 2005 but the word five in Malayalam "അഞ" has been entered by first using a whitener to cover up what was originally entered. Certain other corrections are also there, which are explained by the learned counsel for the petitioner as relatable to survey number of some other property. It is pithily pointed out by the learned counsel for the petitioner that both parties to Ext.P1 have signed wherever corrections have been made in Ext.P1. However, a perusal of the endorsements on the reverse of the first sheet of that document will show that the said stamp paper was purchased from one K.Ravikumar, Stamp Vendor, Cherthala with Endorsement No.1640 on 30-4-2004 by Joseph Xavier Anthraper, who is none other than the 4th respondent herein. For one thing, the property involved in this litigation is not in Cherthala but is in Irinjalakuda. The 4th respondent, going by the writ petition, stays in Aluva. It is stated by the learned counsel for the petitioner WP(C)27109/2008 -: 4 :- that the 4th respondent's ancestral home is in Cherthala. I am not prepared to swallow a version that the stamp paper on which Ext.P1 was drawn up was purchased for the transaction in question. I say this because, even as per the writ petition, the petitioner sold the property to the 4th respondent only on 27-7-2005. The stamp paper is purchased on 30-4-2004, more than one year before the sale in favour of the 4th respondent. It is in this context that I view the seriousness of the correction of the year shown on the face of Ext.P1 as 2005. In all probability, going by the common course of human conduct, that would have been a document created in 2004 and later corrected as 2005. I may also notice that Ext.P6 dispossession notice is in relation to land in Poomangalam village and in Vadakkumkara village. But the land involved in Ext.P1, going by whatever remains after the erasions, is land in Poomangalam village. Whatever be the credibility of Ext.P1, the object sought to be achieved by the SARFAESI Act cannot be thwarted by a person WP(C)27109/2008 -: 5 :- like the petitioner, who is none other than the vendor of the defaulter, namely, the 4th respondent. Learned counsel for the bank has also stated that even under the document of sale by the petitioner in favour of the 4th respondent it is recited that the 4th respondent has been put in possession by the petitioner. Having regard to what is aforesaid, I do not find it just and reasonable to withhold the recovery proceedings against the 4th respondent or the physical dispossession of the petitioner in exercise of authority under Article 226 of the Constitution of India. The writ petition fails. The same is accordingly dismissed. THOTTATHIL B. RADHAKRISHNAN, JUDGE. Sha/230908