IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN MONDAY, THE 7TH JUNE 2010 / 17TH JYAISTHA 1932 WP(C).No. 35275 of 2009(D) -------------------------- PETITIONER(S): --------------- VIJAYA BANK, ALAPPUZHA BRANCH, REPRESENTED BY ITS BRANCH MANAGER. BY ADV. SRI.K.ANAND (A.201) RESPONDENT(S): --------------- 1. JOMON JOHN, RESIDING AT JEES HOUSE, PUTHOPARAMB, SEAVIEW WARD, ALAPPUZHA. 2. THE SUPDT. OF POLICE, ALAPPUZHA. 3. THE CIRCLE INSPECTOR OF POLICE, ALAPPUZHA. 4. THE SUB INSPECTOR OF POLICE, ALAPPUZHA. R1 BY ADV. SRI.C.S.ULLAS R2 TO R4 BY GOVT. PLEADER SRI.V.MANU THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 07/06/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX IN WPC.35275/09 PETITIONER'S EXHIBITS: EXT.P1: TRUE COPY OF THE JUDGMENT IN W.A.NO.2101/08. EXT.P2: TRUE COPY OF LETTER DATED 4.8.09. /TRUE COPY/ THOTTATHIL B.RADHAKRISHNAN & S.S.SATHEESACHANDRAN, JJ. ------------------------------------------- W.P(C).No.35275 OF 2009 ------------------------------------------- Dated this the 7th day of June, 2010 JUDGMENT Thottathil B.Radhakrishnan, J. 1.The first respondent filed W.P(C).20150/08 seeking reliefs in relation to proceedings under the SARFAESI Act. That writ petition was ordered on 24.9.2008. He carried an appeal against that. As per Ext.P1 judgment dated 24.10.2008, the Division Bench ordered that appeal, W.A.2101/08. 2.When the appeal was being considered by the Division Bench, the situation was that the residential building of the first respondent herein was in the possession of the bank, it having taken possession under SARFAESI Act proceedings. Before the Division Bench, an affidavit of undertaking was filed by the appellant undertaking to deposit an amount of Rs.7,00,000/- WPC.35275/09. 2 within one month from then and balance within a further period of three months. This was to provide him an opportunity to occupy the residential building. The appellant undertook that if he commits default in remitting any payment, he shall ultimately hand over possession of the property to the bank. In spite of serious opposition from the bank, the Bench acted on that undertaking of the appellant and passed the following order: “(i) The appellant shall deposit a sum of Rs.7,00,000/- (Rupees seven lakhs only) as undertaken by him in the affidavit filed before this Court within a month's time from today. (ii) If such deposit is made within the time granted by this Court, the first respondent Bank is directed to handover possession of the residential house situated in Sy.No.782/2-2 of Alappuzha West Village to the appellant. (iii) The appellant shall pay the balance of amount due to the first respondent Bank within the WPC.35275/09. 3 outer limits of four months from today. If such payment is not made within the time granted by this Court, the appellant shall voluntarily hand over vacant possession of the residential house situated in Sy.No.782/2-2 of Alappuzha West village to the first respondent Bank (iv) If for any reason, the appellant fails to hand over vacant possession of the residential house, the first respondent Bank is at liberty to take possession of the property with the assistance of the police authorities. (v) The first respondent Bank shall not effect sale of the property for a further period of four months from today.” 3.Direction No.(iv) of the aforesaid order was issued on the basis of the undertaking of the first respondent herein that he shall voluntarily hand over possession of the property to the petitioner herein, in case of failure to pay the amount. That being part of the judicial order issued by the Division Bench, WPC.35275/09. 4 acting on the undertaking, the writ petitioner bank is well founded in requesting for police help since the Bench had directed that if for any reason there is failure to hand over vacant possession, the bank will be at liberty to take possession with assistance of police department. 4.Learned counsel for the first respondent argued that police force can be brought in only if the Bank initiates fresh proceedings under section 14 of the SARFAESI Act. We repel this argument for the reason that the Bank had earlier obtained possession and the first respondent herein was permitted to occupy it only in terms of the direction of this Court. That direction was issued by this Court coupled with the liability of the debtor to voluntarily surrender possession on failure to pay the amount. This Court had also directed that the bank would be entitled to take possession with police force in case of default. That judgment and order have become final WPC.35275/09. 5 inter partis. We, therefore, overrule the contention of the first respondent in that regard. For the aforesaid reasons, this writ petition is allowed directing respondents 2 to 4 to forthwith give effect to the request of the petitioner in Ext.P2. Sd/- THOTTATHIL B.RADHAKRISHNAN, Judge. Sd/- S.S.SATHEESACHANDRAN, Judge. kkb.8/06.