Raveendran Nair vs Musthafa.P.K
2021 Latest Caselaw 11656 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                  PRESENT

          THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V

     FRIDAY, THE 09TH DAY OF APRIL 2021 / 19TH CHAITHRA, 1943

                          WP(C).No.3256 OF 2021(F)


PETITIONER:

               RAVEENDRAN NAIR
               AGED 64 YEARS
               S/O KRISHNAN, CHAIRMAN AND MANAGING DIRECTOR,
               M/S WALTZ HOSPITAL PRIVATE LIMITED, AL MARFA TOWER,
               MANNARCAUD ROAD, PERINTHALMANNA, MALAPPURAM DISTRICT,
               PIN-689 322, RESIDING AT RATNAM, HOUSE NO 58,
               PTP NAGAR, THIRUVANANTHAPURAM, PIN-695 038.

               BY ADV. SRI.GOPAKUMAR R.THALIYAL

RESPONDENTS:

      1        MUSTHAFA.P.K
               AGED 64 YEARS
               S/O MAMMICHA HAJI, POOKKUDAN HOUSE, HOSPITAL ROAD,
               PERINTHALMANNA, MALAPPURAM DISTRICT, PIN-689 322.

      2        THE STATION HOUSE OFFICER,
               PERINTHALMANNA POLICE STATION,
               PERINTHALMANNA, MALAPPURAM DISTRICT,
               PIN-689 322.

      3        THE DIRECTOR GENERAL OF POLICE,
               POLICE HEADQUARTERS, VAZHUTHACAUD,
               THIRUVANANTHAPURAM, PIN-695 014.

      4        STATE OF KERALA,
               REPRESENTED BY THE SECRETARY TO GOVERNMENT,
               HOME DEPARTMENT, GOVERNMENT SECRETARIAT,
               THIRUVANANTHAPURAM, PIN-695 001.

      5        ADDL.R5.

               SENIOR MANAGER,
               CANARA BANK, COSMOPOLITAN BRANCH,
               THIRUVANANTHAPURAM PIN - 695527.

      6        ADDL.R6.

               THE ASSISTANT ENGINEER,
               KERALA STATE ELECTRICITY BOARD, PERINTHALMANNA,
 WP(C).No.3256 OF 2021(F)     2

             MALAPPURAM DISTRICT PIN - 689322.

             ADDL. R5 AND R6 ARE IMPLEADED AS PER ORDER DATED
             03.03.2021 IN IA NO.1/2021 IN WPC NO. 3256/2021.

             R1 BY ADV. SRI.K.M.SATHYANATHA MENON
             R1 BY ADV. SMT.KAVERY S THAMPI
             R2-4 BY SRI THAJUDEEN PP, GOVERNMENT PLEADER
             R5 BY ADV. SRI.M.GOPIKRISHNAN NAMBIAR
             R5 BY ADV. SRI.K.JOHN MATHAI
             R5 BY ADV. SRI.JOSON MANAVALAN
             R5 BY ADV. SRI.KURYAN THOMAS
             R5 BY ADV. SRI.PAULOSE C. ABRAHAM
             R5 BY ADV. SRI.RAJA KANNAN
             R6 BY ADV. SRI.A.ARUNKUMAR




     THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
09.04.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C).No.3256 OF 2021(F)                3




                                    JUDGMENT

The petitioner states that he is the Chairman and Managing Director of M/s

Waltz Hospital Private Limited, Mannarcad. The said hospital is being run in a

premise taken on lease by the petitioner herein from the 1st respondent. The lease

was for a period of 15 years from 15.5.2013. The petitioner states that due to the

floods which ravaged the State of Kerala, the Covid restrictions and other adverse

factors the hospital met with huge loss. It became next to impossible for the

petitioner to continue with the business. This led to serious strain in the relationship

between the landlord and tenant.

2. It is contended that the hospital was being run on the cover of the

working capital availed from the Canara bank, Cosmopolitan Branch, the additional

5th respondent herein. As security for the loan, the medicines, other stock and

hospital machinery are hypothecated with the bank. When it became impossible for

the petitioner to run the hospital, they informed the bank that they plan to close

down the hospital. The 1st respondent was informed by Ext.P5 notice of their

decision to terminate the lease. However, the 1st respondent has raised some

monetary claims and have been obstructing the petitioner from proceeding with the

closure in an amicable manner.

3. The petitioner states that before closing the hospital, they are required

to settle certain issues with the workers, creditors and other service providers.

Huge amounts of medicines are also retained in the hospital. When the petitioner

tried to take out the medicines and other office equipment including computers,

obstruction was caused by the 1st respondent. In the said circumstances, the

petitioner has lodged Ext.P6 complaint before the police seeking protection.

Complaining of inaction, the petitioner is before this Court seeking directions to the

police to afford adequate protection to the life and property of the petitioner and

also for taking out the medicines, files and equipment from the premise of the

hospital.

4. The 1st respondent has filed a counter affidavit wherein it is stated

that the intention of the petitioner in approaching this Court seeking police

protection is to evade from their liability to the landlord. The rent arrears has

mounted to the tune of about Rs.85 lakhs. The petitioner owes huge sums of

money towards energy charges and if the amount is not paid, the landlord and the

premises would be burdened. According to the 1st respondent, the attempt of the

petitioner is to remove all the movables under the cover of an order of this Court to

defeat the rights of the 1st respondent. It is contended that the 1st respondent has

issued a notice demanding arrears of rent as early as on 15.12.2020 and thereafter

he has instituted O.S.No.17/2021 before the Munsiff Court, Perinthalmanna to

restrain the petitioner and his men from removing the machineries etc from the

hospital building without discharging the arrears of rent and other liabilities. It is

further stated that a Rent Control Petition has also been filed seeking to evict the

petitioner on the grounds of arrears of rent.

5. A statement has been filed by the additional 5th respondent wherein it

is stated that a working capital loan for a sum of Rs.48 lakhs was granted to the

petitioner on 16.11.2013. Later, an additional amount of Rs.14,40,000/- was

sanctioned. As on 10.3.2021, the total outstanding to the bank is Rs.66,56,765/-. It

is further stated that as security, the medicines, other stocks and hospital machinery

are hypothecated. It is stated that the moving of the hypothecated stocks and

machinery from the hospital can be permitted only if the petitioner continues the

hospital service. According to the said respondent, if the petitioner intends to close

the business, the entire loan and arrears will have to be closed.

6. In the statement filed by the 6th respondent it is stated that the

registered consumer is the first respondent herein. The arrears as on date due to

the KSEBL is Rs.3,34,116/- and Rs.16,040/- towards surcharge.

7. The petitioner has filed a reply denying the contentions raised by the

1st respondent.

8. I have considered the submissions advanced. In the case on hand, the

prayer of the petitioner is to direct the respondents 2 and 3 to afford adequate

protection to the life of the petitioner and also for taking out the medicines worth

about Rs.10 lakhs, office files and office equipment from the premise of the

hospital. The petitioner has filed I.A.No.3 of 2021 detailing the stock of medicines

retained in the premises.

9. The records reveal that the landlord has already moved the Civil Court

and sought for an injunction restraining the petitioner from moving the goods

without clearing off the arrears. I also find that the Bank has also filed a statement

contending that the hospital machineries are hypothecated with the Bank and

without their consent, the same cannot be taken out.

10. Faced with the said submissions, Sri.Gopakumar R. Thaliyal, the

learned counsel appearing for the petitioner, submitted that the main grievance of

the petitioner is that medicines worth Rs.10 lakhs retained in the hospital will be

rendered useless, if the same is not taken out in an expeditious manner, particularly

since the electricity supply has been disconnected by the KSEBL. He submits that

the value of the medicine shall be deposited with the bank so that the burden can

be reduced.

11. The learned Standing Counsel appearing for the bank submitted that

the stock is hypothecated with the bank and they have no grievance if the amount

is deposited with the bank. The Counsel appearing for the 1st respondent fairly

conceded that no one would be benefited if the medicines are rendered useless and

he cannot justifiably raise any objection to the said request.

12. Having considered the facts and the submissions made across the bar,

I am of the view that the petitioner can be permitted to take out the medicines kept

in the Hospital on condition that the value of the same as determined by the

stockist / dealer would be deposited in the 5th respondent Bank. In that view of the

matter, there will be a direction to the additional 5th respondent to depute an officer

of the Bank to oversee the valuation and handing over of the medicines kept in the

petitioner hospital. The value obtained from the return of the medicine shall be

deposited with the additional 5th respondent Bank. To ensure that the valuation and

handing over is peaceful, the 2nd respondent shall depute his officers. On the cover

of the directions issued by this Court, the petitioner shall not remove any other item

such as furniture, files or computers. As far as those items are concerned, the

parties shall raise their claims and contentions before the Civil Court where

litigations are pending.

This writ petition is disposed of.

Sd/-

RAJA VIJAYARAGHAVAN V

JUDGE sru

APPENDIX PETITIONER'S/S EXHIBITS:

EXHIBIT P1 TRUE COPY OF THE LEASE DEED 15.5.2013.

EXHIBIT P2 TRUE COPY OF THE REPRESENTATION DATED 16.11.2020 SUBMITTED BY THE PETITIONER TO THE 3RD RESPONDENT

EXHIBIT P3 TRUE COPY OF THE ADVOCATE NOTICE DATED 17.11.2020

EXHIBIT P4 TRUE COPY OF THE NOTICE DATED 25.1.2021 SEND TO THE SENIOR MANAGER, CANARA BANK, COSMOPOLITAN BRANCH, THIRUVANANTHAPURAM

EXHIBIT P5 TRUE COPY OF THE ADVOCATE NOTICE DATED 28.1.2021

EXHIBIT P6 TRUE COPY OF THE REPRESENTATION DATED 25.1.2021 SUBMITTED BY THE PETITIONER TO THE 2ND RESPONDENT

EXHIBIT P7 TRUE COPY OF THE REPRESENTATION DATED 25.1.2021 SUBMITTED BY THE PETITIONER TO THE 3RD RESPONDENT

EXHIBIT P8 TRUE COPY OF THE LETTER DATED 23.10.2014 ISSUED BY THE DERMATOLOGIST TO THE HOSPITAL MANAGEMENT.

 EXHIBIT P9           TRUE COPY OF THE REPLY NOTICE DATED
                      23.12.2020

 EXHIBIT P10          TRUE COPY OF THE REPLY NOTICE DATED
                      28.1.2021

 EXHIBIT P11          TRUE COPY OF THE PHOTOGRAPH SHOWING THE
                      LOCKING OF THE PHARMACY WITH ANOTHER LOCK
                      BY THE 1ST RESPONDENT AND HIS PEOPLE.

 EXHIBIT P12          TRUE COPY OF THE STOCK LIST OF MEDICINES
                      KEPT IN THE PHARMACY OF M/S.WALTZ
                      HOSPITAL PRIVATE LIMITED, PERINTHALMANNA
                      AS ON THE DATE OF ITS CLOSURE

 RESPONDENTS' EXHIBITS:

 EXHIBIT R1(A)    TRUE COPY OF THE BILL DATED 2.2.2021 ISSUED


                  BY THE KERALA STATE ELECTRICITY BOARD
                  LIMITED TO THE PETITIONER WITH RESPECT TO
                  CONSUMER NO.1165626020673

 EXHIBIT R1(B)    TRUE COPY OF THE LETTER ISSUED BY THE
                  PETITIONER DATED 1.2.2021 TO THE ASSISTANT
                  ENGINEER, KERALA STATE ELECTRICITY BOARD
                  LIMITED, PERINTHALMANNA

 EXHIBIT R1(C)    TRUE COPY OF THE REPLY NOTICE FORWARDED BY
                  1ST RESPONDENT THROUGH HIS LAWYER DATED
                  10.12.2020

 EXHIBIT R1(D)     TRUE COPY OF THE ACKNOWLEDGEMENT OF EXT
                  R1(C) REPLY NOTICE

 EXHIBIT R1(E)    TRUE COPY OF THE NOTICE DATED 15.12.2020
                  ISSUED BY 1ST RESPONDENT THROUGH HIS COUNSEL
                  TO THE PETITIONER

 EXHIBIT R1(F)    TRUE COPY OF THE ACKNOWLEDGEMENT OF EXT
                  R1(E) NOTICE.

 EXHIBIT R1(G)    TRUE COPY OF THE CORRIGENDUM NOTICE DATED
                  15.01.2021 ISSUED BY 1ST RESPONDENT THROuGH
                  HIS COUNSEL TO THE PETITIONER.

 EXHIBIT R1(H)    TRUE COPY OF THE ACKNOWLEDGEMENT OF EXT
                  R1(G) NOTICE

 EXHIBIT R1(I)    TRUE COPY OF THE NOTICE ISSUED BY 1ST
                  RESPONDENT THROUGH HIS COUNSEL TO THE
                  PETITIONER DATED 12.2.2021

 EXHIBIT R1(J)    TRUE COPY OF THE PLAINT SUBMITTED BY 1ST

RESPONDENT AS O.S.NO.17/2021 DATED 2.2.2021 AND PENDING ON THE FILES OF THE MUNSIFF COURT, PERINTHALMANNA