IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN WEDNESDAY, THE 9TH JANUARY 2008 / 19TH POUSHA 1929 WP(C).No. 37625 of 2007(D) -------------------------- PETITIONERS: ------------ 1. THE GENERAL MANAGER,NILAMBUR CO-OP.URBAN BANK LIMITED, HEAD OFFICE, NILAMBUR P.O., MALAPPURAM DISTRICT. 2. THE DEPUTY GENERAL MANAGER, NILAMBUR CO-OP.URBAN BANK LIMITED, HEAD OFFICE, NILAMBUR P.O., MALAPPURAM DISTRICT. BY ADV. SRI.K.M.SATHYANATHA MENON RESPONDENTS: ------------- 1. THE SUB INSPECTOR OF POLICE, NILAMBUR POLICE STATION, MALAPPURAM DISTRICT. 2. THE CIRCLE INSPECTOR OF POLICE, NILAMBUR POLICE STATION, MALAPPURAM DISTRICT. 3. THE SUPERINTENDENT OF POLICE, MALAPPURAM DISTRICT, MALAPPURAM. 4. SHRI. MURALIDHARAN, LAKAYIL HOUSE, P.O.NILAMBUR, MALAPPURAM DISTRICT. ADDL.R5 SHRI.V.P. SAIDALAVI @ SAID HAJI, MANAGING DIRECTOR, LLX, CENE CREATIONS, ROOM NO.104, BYE-PASS COMPLEX, P.O MUNDUPARAMBA, MALAPPURAM DISTRICT. IMPLEADED AS PER ORDER IN IA.NO.16866/07 DTD 18.12.2007 R5-BY ADV. SRI.BINDU SREEKUMAR R4- SRI.T.R.HARIKUMAR SRI.JAIBY PAUL BY G.P.SRI. SALIM P.A THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 09/01/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC.NO.37625/2007 EXT.P1 COPY OF THE LICENSE ISSUED BY THE RESERVE BANK OF INDIA IN FAVOUR OF THE PETITIONERS' BANK DTD 3..12.1986. EXT.P2 COPY OF THE RESOLUTION TAKEN BY THE BANK BY DECISION NO.504 DTD 11.12.2006. EXT.P3 COPY OF THE NOTICE ISSUED BY THE BANK TO R4 DTD 10.12.2006. EXT.P4 COPY OF THE RELEVANT PORTION OF THE ACKNOWLEDGEMENT CARD DTD 16.12.2006. EXT.P5 COPY OF THE POSSESSION CERTIFICATE ISSUED BY THE PETITINERS DTD 1.3.2007. EXT.P6 COPY OF THE PUBLICATION MADE BY THE PETITIONER IN MALAYALA MANORAMA DAILY DTD 7.3.2007. EXT.P7 COPY OF THE NOTICE ISSUED BY THE PETITIONER D TD 3.5.2007. EXT.P8 COPY OF THE ENDORSEMENT MADE BY THE POSTAL AAUTHORITIES OVER THE ACKNOWLEDGMENT OF EXT.P7. EXT.P9 COPY OF THE PUBLICATION MADE ON MALAYALA MANORAMA DAILY ON 16..5.2007. EXT.P10 COPY OF THE PUBLICATION OF SALE BY THE PETITINERS' BANK DTD 25.6.2007. EXT.P11 COPY OF THE PUBLICATION MADE BY THE PETITINER IN MALAYALA MANORAMA DTD 27.6.2007. EXT.P12 COPY OF THE SALE NOTICE WHICH WAS ADJOURNED TO 20.9.2007. EXT.P13 COPY OF THE ORDER IN IA.NO.1381/07 IN OS.NO.215/2007 ON THE FILE OF THE MUNSIFF COURT, MANKERI. EXT.P14 COPY OF THE DECISION OF THE PETITIONERS' BANK DTD 3.9.2007. EXT.P15 COPY OF THE COMPLAINT SUBMITTED BEFORE R1 DTD 4.12.2007. EXT.P16 COPY OF THE RECEIPT ISSUED BY R1. EXT.P17 COPY OF THE COMPLAINT SUBMITTED BEFORE THE RESPONDENTS DTD 15.12.2007. EXT.P18 COPY OF THE RECEIPT ISSUED BY R1. /TRUE COPY/ cl K. BALAKRISHNAN NAIR & P.N. RAVINDRAN, JJ. --------------------------------------------------------------- W.P.(C).NO.37625 OF 2007- D -------------------------------------------------------------- Dated this the 9th day of January, 2008. JUDGMENT Balakrishnan Nair, J: The writ petitioners are respectively the General Manager and Deputy General Manager of the Nilambur Co-operative Urban Bank Limited. The 4th respondent availed a loan from the said Bank by depositing the original title deeds of his property and thereby creating an equitable mortgage. Since, the 4th respondent defaulted, the Bank invoked its powers under Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (herein after referred to as the Act). The Bank submits, as per Exts.P5 and P6, the property mortgaged has been taken over under Section 13(4) of the Act. A public notification has been issued for sale of the property. While so, the 5th respondent came forward claiming that he purchased the property and he is presently the person in possession and ownership of the property concerned. He filed O.S.No.215/2007 before the Munsiff Court, Manjeri seeking an injunction against the Bank. Though, initially WPC.NO.37625/07 . 2 there was an interim injunction, the said interlocutory application was dismissed as per Ext.P13. The Civil Miscellaneous Appeal filed by him was also dismissed. Now, a civil revision petition is pending before this Court challenging the order in the appeal. As soon as the property was taken over, the Bank posted a security guard to protect the property. Now the 5th respondent is interfering with the possession of the property by the Bank and the said respondent along with his men are threatening the officials of the Bank. So, the Bank has filed Ext.P17 representation before respondents 1 to 3 for police protection. Since the said respondents were not extending the police protection, this writ petition is filed seeking appropriate reliefs. 2. The learned counsel for the 4th respondent submitted that he has not sold the property and has surrendered the possession of the property to the Bank by giving the key of the building to its officers. The 5th respondent, on the other hand, submitted that the 4th respondent has executed a power of attorney in favour of one person and on the strength of that power of attorney, the said person assigned a portion of the mortgaged property to him and he is in possession and enjoyment of that property. WPC.NO.37625/07 . 3 3. The Bank is entitled to get the assistance of the District Magistrate not only for taking over of the property but also for maintaining its possession. This is evident from the provisions of Section 14(1), which reads as follows: “14. Chief Metropolitan Magistrate or District Magistrate to assist secured creditor in taking possession of secured asset:- (1) Where the possession of any secured asset is required to be taken by the secured creditor or if any of the secured asset is required to be sold or transferred by the secured creditor under the provisions of this Act, the secured creditor may, for the purpose of taking possession or control of any such secured asset, request, in writing the Chief Metropolitan Magistrate or the District Magistrate within whose jurisdiction any such secured asset or other documents relating thereto may be situated or found, to take possession thereof, and the Chief Metropolitan Magistrate or, as the case may be, the District Magistrate shall, on such request being made to him - (a) take possession of such asset and documents relating thereto; and (b) forward such assets and documents to the secured creditor.” So, if the District Magistrate is satisfied that the petitioners' case is a fit case, the said officer can direct the police to render assistance to the Bank to retain its possession of the property. But, WPC.NO.37625/07 . 4 in the absence of any dereliction of duty from the part of the police, we are not justified in issuing a direction under Article 226 of the Constitution of India to them. Going by the scheme of the Act, the police is not supposed to directly interfere in the matter, in the absence of any direction by the Magistrate concerned. Therefore, without prejudice to the contentions of both sides and the right of the petitioners to move the District Magistrate for appropriate reliefs, this writ petition is closed. K. BALAKRISHNAN NAIR, JUDGE. P.N. RAVINDRAN, JUDGE. cl WPC.NO.37625/07 . 5