IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON MONDAY, THE 22ND FEBRUARY 2010 / 3RD PHALGUNA 1931 WP(C).No. 2085 of 2010(I) ------------------------- PETITIONER(S): --------------- AXIS BANK LTD, REPRESENTED BY ITS VICE PRESIDENT, E.GOVINDANKUTTY, CONDOR PLAZA, PATTOM, M.G.ROAD, THIRUVANANTHAPURAM-695 004. BY ADV. SRI.S.MARTIN GOERGE SRI.T.SANJAY RESPONDENT(S): --------------- 1. STATE BANK OF TRAVANCORE REPRESENTED BY ITS MANAGER, NEDUMANGAD. 2. STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY, SECRETARIAT, THIRUVANANTHAPURAM. 3. SURESH BABU, TC.29/823, SIVASAKTHI, PALKULANGARA, THIRUVANANTHAPURAM. ADV. SRI.R.S.KALKURA FOR R1,2 GOVERNMENT PLEADER SRI.BIJOY CHANDRAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 22/02/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.R. RAMACHANDRA MENON, J. ----------------------------------------------- WP(C) No. 2085 of 2010 ------------------------------------- Dated, this the 22nd day of February, 2010 J U D G M E N T The 'Petitioner Bank' has approached this Court seeking for issuance of a Writ of Mandamus directing the first 'respondent Bank' to remove the obstructions with regard to the free ingress and egress to the customers of the petitioner Bank to their ATM at East Fort, Thiruvananthapuram; simultaneously seeking for a direction to permit the petitioner to continue the Ext.P2 lease agreement, on the basis of which, the premises have been taken on lease by the petitioner from the landlord for a period of 12 years. There is also a prayer to direct the first respondent to consider and pass appropriate orders on Ext.P3 representation. 2. The respondents 1 and 2 have filed a statement asserting that the averments and allegations raised in the petition are devoid of any merit or bonafides. It is stated that the property in question was the subject matter of security interest, whereby a loan facility was extended by the first respondent to the owner of the property. Subsequently, when the owner of the property turned to be a defaulter, the first respondent Bank proceeded with further steps for realisation of the due amount, invoking the machinery under the SARFAESI Act and it was accordingly, that Annexure R1(b) WP(C) No.2085/2010 2 proceedings have been caused to be issued on approaching the concerned Chief Judicial Magistrate, who is the statutory authority under Section 14 of the Act. It is also brought to the notice of this Court that, absolutely no obstruction has been caused from the part of the first respondent or anybody under them with regard to the operation of the ATM of the petitioner Bank. 3. Taking note of the existence of the ATM counter, only symbolic position was taken over by the Advocate Commissioner; whereas in respect of the remaining portion, physical possession was taken over on 11.01.2010, which is very much discernible from Annexure R1(b) report of the Commissioner. It is further stated in paragraph 5 of the statement that the first respondent has absolutely no intention to prevent the working of the ATM counter of the petitioner and that the authorized officer has instructed the petitioner Bank to pay such rent as was being paid to the previous owner/3rd respondent for the ATM counter and further that the first respondent does not have any objection whatsoever in making use of the premises by the petitioner Bank for running the ATM for a further period of two months. 4. It is brought to the notice of this Court that the representation preferred by the petitioner in this regard seeking to permit them to continue for a period of 'six' months was considered and held as not acceptable and that the position was conveyed to the petitioner; correctness of which is however strongly rebutted from the part of the petitioner. In any view of the WP(C) No.2085/2010 3 matter, the stand is very much reflected from the statement filed before this Court that the first respondent does not have any objection to permit the petitioner to occupy the premises for a period of 'two' months. 5. The learned counsel for the petitioner submits, with reference to the contents in the Writ Petition as well as the reply statement filed that irreparable loss and injury will be caused to the petitioner as well as the customers, if the petitioner is compelled to quit and that a minimum time of 'six' months is necessary so as to make appropriate alternate arrangements, finding out some other suitable premises in the nearby locality. 6. After hearing both the sides, this Court finds that no illegality or irregularity is established on the part of the first respondent in pursuing the steps to have the rights and remedies available to them under the relevant provisions of law. The petitioner Bank is only a 'tenant' who is stated as having the rights and interest over the premises by virtue of Ext.P2 lease deed; who cannot have any better rights and the liberties than the landlord himself. That apart, this Court is not bound to look into Ext.P2 lease agreement at all, for the obvious reason that there is no case of the petitioner that Ext.P2 is a 'registered' lease agreement, despite the fact that it is for a tenure of '12 years'. By virtue of the specific stipulation under the statute under Section 17 D of the Registration Act, any lease agreement stipulating yearly rent for a period of one year or more is compulsorily liable to be WP(C) No.2085/2010 4 registered and the consequence of non registration of any document which is liable to be compulsorily registered is clearly dealt with under Section 49 C of the very same enactment. Above all, the rights and interests of the secured creditor under the SARFAESI Act are having an over riding effect over the other statutes and contracts/agreements by virtue of the 'non-obstante clause' under Section 35 of the said Act. 7. In the above facts and circumstances, this Court does not find any tenable ground to interfere. However, considering the fact that the 'financial year ending' is coming to a close and since the petitioner might require some breathing time to make other alternate arrangements, the petitioner is permitted to continue for the time being and shall effect vacant surrender of the premises to the 1st respondent Bank, on expiry of three months from the date of receipt of a copy of this judgment. The Writ Petition is disposed of accordingly. P. R. RAMACHANDRA MENON JUDGE dnc