IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON TUESDAY, THE 18TH MAY 2010 / 28TH VAISAKHA 1932 WP(C).No. 31616 of 2008(L) -------------------------- CMP.2422/2008 of C.J.M., ALAPPUZHA .................... PETITIONER(S): --------------- VIJAYA BANK, ALLEPPEY BRANCH, ALAPPUZHA REPRESENTED BY ITS BRANCH MANAGER. BY ADV. SRI.K.ANAND (A.201) SMT.LATHA KRISHNAN RESPONDENT(S): --------------- 1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA. *2. P.D.UDAYAN, S/O. LATE DIVAKARAN, PULICHUVATTIL HOUSE KOMALAPURAM, ALAPPUZHA (PROPRIETOR, M/S. ANANTHUCOIS, HOUSE NO. 577, VELIYIL HOUSE, SOUTH ARYAD, ALAPPUZHA) *3. P.D. MADANAN, S/O. LATE DIVAKARAN, VELIYIL HOUSE, SOUTH ARYAD, ALAPPUZHA. *4. AJITH, S/O. P.D.MADANAN, VELIYIL HOUSE, SOUTH ARYAD, ALAPPUZHA. * IMPLEADED AS ADDITIONAL RESPONDENTS AS PER ORDER DATED 29.10.2008. GOVERNMENT PLEADER SRI.MATHEW GEORGE VADAKKEL THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 18/05/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 31616/2008 APPENDIX PETITIONER's EXHIBITS: EXHIBIT P1 : TRUE COPY OF THE JUDGMENT DATED 24.07.2008 IN WP(C) NO. 14159/2008. EXHIBIT P2 : TRUE COPY OF THE ORDER DATED 11.08.2008 IN CMP 2422 OF 2008 ON THE FILES OF HON'BLE CHIEF JUDICIAL MAGISTRATE, ALAPPUZHA. /TRUE COPY/ P.A. TO JUDGE. P.R.RAMACHANDRA MENON, J -------------------------------------------- WP(C) NO. 31616 OF 2008 -------------------------------------------- Dated this the 18th day of May, 2010 JUDGMENT The petitioner is challenging Ext.P2 order whereby the application preferred by the Bank under Section 14 of the SARFAESI Act seeking for assistance of the Police for taking physical possession of premises over which security interest was created by the defaulter has been rejected. 2. The sequence of events shows that the concerned borrowers had availed a credit facility from the petitioner Bank, creating security interest over the property in question. But since the repayment was not effected on time, the Bank proceeded with steps under the SARFAESI Act, when the same was sought to be challenged by the concerned parties (who are the additional respondents 2 and 3 herein) by filing WP(C) No.14159/2008. When the matter was taken up, the petitioner therein submitted that the matter was not intended to be pressed any further and accordingly, the Writ Petition was 'dismissed as not pressed', as borne by Ext.P1. 3. Meanwhile, pursuant to the steps taken by the Bank by filing CMP 5113/2007 before the Chief Judicial Magistrate's Court, Alappuzha, under Section 14 of the Act, necessary Police assistance was ordered to be given and accordingly, the premises were taken over and handed over to the petitioner Bank which was put under the lock and key; simultaneously 2 WP(C) No. 31616/2008 preparing a mahazar by the concerned Advocate Commissioner in presence of the authorities of the Bank on 13.05.2008 and the Commissioner filed a report before the Chief Judicial Magistrate's Court on 27.05.2008. 4. Subsequently, the Bank proceeded with further steps for sale of the property, when it was found that the building was broke open at the instance of the petitioners in WP(C) 14159/2008 (Additional respondents 2 to 4 herein) and when the matter was questioned by the officials of the Bank, they were threatened and intimidated by the persons posted in the premises; which made the petitioner to approach the Chief Judicial Magistrate, Alappuzha again by filing CMP 2422/2008 for Police assistance; which has been turned down as per Ext.P2, holding that the assistance was rendered earlier; pursuant to which possession was taken and handed over to the petitioner Bank and that the relevant provisions of the Act did not envisage or enable the Magistrate's Court to entertain any subsequent petition. 5. Despite service of notice, the additional respondents 2 to 4 have not chosen to enter appearance and no counter affidavit has been filed with regard to the factual position as narrated in the Writ Petition. 6. Heard the learned Government Pleader on behalf of the respondent State as well. 7. The limited question to be considered is whether the course pursued by the learned Chief Judicial Magistrate, Alappuzha is correct or 3 WP(C) No. 31616/2008 not. 8. The scheme of the statute enables the secured creditor to proceed against the asset over which the security interest has been created, without any interference of the Court and that the pendency of proceedings before a Court a law is not a bar, in view of the dictum laid down in M/s. Tanscore Vs. Union of India [AIR 2007 SC 712]. The statute further protects and safeguards the interest of the secured creditor by virtue of Section 14 - the enabling provision, to approach the District Magistrate or the Metropolitan Magistrate/Chief Judicial Magistrate as the case may be, to take physical possession of the property without any resistance/obstruction from the parties concerned. The Chief Judicial Magistrate had invoked the said power and right by granted assistance on an earlier occasion; the effect of which however was thwarted by the borrowers/Additional respondents 2 to 4, whereby the possession of premises was retrieved by them trespassing into the property. 9. It is settled position that the law is to be interpreted not in favour of the wrong-doers and the high handed action/muscle power of the additional respondents 2 to 4 ought not have been allowed to stand in the way of the learned Magistrate to have extended the relief to the law abiding citizens like the petitioner, so as to sustain the Rule of law. More so, when there is no such bar in the statute as pointed out by the learned Magstrate. This being the position, the course pursued by the learned Magistrate is not correct or proper. Ext.P2 is not sustainable in the eye of law and 4 WP(C) No. 31616/2008 accordingly, the same is set aside. 10. Next question is whether the petitioner Bank should be relegated to approach the Chief Judicial Magistrate for necessary relief. Since the concerned additional respondents 2 to 4 have not chosen to appear, despite the service of notice, it is very much evident that they do not dispute the averments raised; nor do they have any sustainable objection as to the reliefs prayed for by the petitioner. 11. In the above circumstance, the petitioner is permitted to approach the concerned Sub Inspector of Police having jurisdiction over the area, seeking for necessary assistance to take possession of the premises, producing a copy of this judgment. On such event, the concerned Officer in charge of the Police Station shall render effective assistance to the petitioner to take possession of the premises in question forthwith; simultaneously taking appropriate action against the offenders, in respect of the offences, in accordance with the relevant provisions of law. 12. The learned Government Pleader shall communicate the position to the concerned authorities by forwarding a copy of the judgment to the Superintendent of Police, Alappuzha for further steps. The Writ Petition is allowed. No cost. P.R.RAMACHANDRA MENON JUDGE dnc