IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HON'BLE THE CHIEF JUSTICE MR.J.CHELAMESWAR & THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON WEDNESDAY, THE 15TH DECEMBER 2010 / 24TH AGRAHAYANA 1932 WA.No. 2090 of 2010() --------------------- AGAINST THE JUDGEMENT IN WPC.36248/2010 Dated 03/12/2010 .................... APPELLANT: -------------- A. ABDUL SALAM, AGED 60 YEARS, S/O ABOOBACKER KUNJU, V.P. RESTAURANT, HOTEL AND BAKERS, N.H. ROAD, KOTTIYAM, KOLLAM DISTRICT. BY ADV. MR. N.K.MOHANLAL RESPONDENTS: --------------- 1. AUTHORISED OFFICER AND CHIEF MANAGER, INDIAN BANK, ASSET RECOVERY MANAGEMENT BRANCH II, WILLINGTON ESTATE, CIRCLE OFFICE BUILDING, 4TH FLORR, 55/ETHIRAJ SALAI, CHENNAI 600008 2. CHIEF MANAGER, INDIAN BANK, HEAD OFFICE, 66, RAJAJI SALAI, CHENNAIR 670001 3. M/S EAST WEST TRAVEL AND TRADE, LINKS LIMITED, 75 F, NEHRU ROAD, WHILE PARLE, EAST MUMBAI, PIN 400099, REPRESENTED BY ITS MANAGING DIRECTOR. 4. NASARUDEEN, S/O ABDUL VAHID MUSALIYAR, KOTTAVILAKAM HOUSE, ODEYAM, IDAVA, KOLLAM REPRESENTED BY HIS BROTHER AND POWER OF ATTORNEY HOLDER THAHAKKUTTY S/O ABDUL VAHID MUSALIYAR, KOTTAVILAKAM HOUSE, ODEYAM, IDAVA, KOLLAM PIN 695 311. BY ADV. MR. S. EASWARAN THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 15/12/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J. CHELAMESWAR, C.J. & P.R. RAMACHANDRA MENON J. ~~~~~~~~~~~~~~~~~~~~~~~ W.A. No. 2090 OF 2010 ~~~~~~~~~~~~~~~~~~~~~~~ Dated, this the 15th day of December, 2010 JUDGMENT Ramachandra Menon, J. The unsuccessful petitioner in the Writ Petition is the appellant before this Court. The challenge raised in the Writ Appeal is mainly with regard to the denial of the prayer so as to permit the appellant/petitioner to occupy as a tenant in the premises in question, which however has been taken possession of by the Bank, in the course of steps for realization of the due amount from the defaulter/landlord, invoking the remedy under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002. 2. The sequence of events as revealed from the pleadings shows that, the land lord of the building had availed a loan from the respondent Bank, much ago, creating security interest over the property. It is also an admitted fact that the tenancy was created only by virtue of a lease agreement executed on 19.10.2009, whereas the property was given as security to the Bank at the time of availing the W.A No. 2090 of 2010 : 2 : loan years before. In spite of the assurance and undertaking given by the borrower, the amount due to the Bank was not satisfied, under which circumstances, the loan account was declared as 'NPA' and the Bank proceeded with the steps under the SARFAESI Act. 3. In the above circumstances, the appellant/tenant sought to approach this Court, by filing W.P. (C) No. 25198 of 2010, raising many a ground, including the right to continue the occupation as a tenant, contending that the rights and liberties of the tenant under the Kerala Building (Lease and Rent Control) Act cannot be watered down by virtue of any steps under the SARFAESI Act. After considering the contentions raised from either side, final verdict was passed in the aforesaid Writ Petition, as per judgment dated 22nd October 2010, holding that no such tenancy as alleged by the petitioner could have been created over the property, by virtue of statutory bar under Section 13 (13) of the SARFAESI Act. It is an admitted or rather undisputed fact that the said judgment has become final and that the appellant/tenant has not chosen to challenge the same. 4. The learned counsel for the appellant submits that the prayer raised in the present Writ Petition is that the writ petitioner is desirous of purchasing the property and that he might be given the opportunity to continue to occupy the premises doing his business and paying such W.A No. 2090 of 2010 : 3 : rent, as to be fixed by the Bank. It is also stated that the writ petitioner is ready to purchase the property for the market to be fixed by the Bank. In any view of the matter, the fact remains (as admitted in the Writ Petition and in the memorandum of Appeal) that, the Bank had notified the sale of the property twice and that the sale did not take place for want of necessary bidders. What prevented the appellant/petitioner from participating in the bid, if he were genuinely interested in purchasing the property is not discernible from the pleadings and proceedings. 5. However, after taking note of the contentions raised by the petitioner, the learned Single Judge of this Court declined to interfere with the matter and the Writ Petition was dismissed, specifically observing that, it was always open for the writ petitioner to approach the respondent Bank for purchasing the building in question either by participating in the auction sale or through other methods permissible under the law. This being the position, the main prayer in the Writ Petition stands substantially satisfied and it is always open for the appellant/writ petitioner to participate in the auction as and when the sale is notified. Similarly, it is also open for the petitioner/appellant to approach the Bank for enabling him to occupy the premises on rent, till the property is actually sold in accordance with the relevant provisions W.A No. 2090 of 2010 : 4 : of law, which is of course a matter for the Bank to consider at their sole discretion. We find no tenable ground to interfere with the verdict passed by the learned Single Judge. The Writ Appeal fails and the same is dismissed accordingly. J. CHELAMESWAR, CHIEF JUSTICE P. R. RAMACHANDRA MENON, JUDGE kmd