Haridas P vs Idbi Bank Limited
2022 Latest Caselaw 12089 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM
                               PRESENT
                THE HONOURABLE MR. JUSTICE GOPINATH P.
    THURSDAY, THE 22ND DAY OF DECEMBER 2022 / 1ST POUSHA, 1944
                       WP(C) NO. 41984 OF 2022
PETITIONER:

          HARIDAS P.
          AGED 56 YEARS
          MANGALATH HOUSE, PUTHOORVAYAL POST,
          KALPETTA VILLAGE, VYTHIRI TALUK,
          WAYANAD DISTRICT, PIN - 673 577.

          BY ADV MELWIN BYJU



RESPONDENTS:

    1     IDBI BANK LIMITED
          KALPETTA BRANCH, MAIN ROAD,
          KALPETTA POST AND VILLAGE,
          VYTHIRI TALUK, WAYANAD DISTRICT, PIN - 673 121.
          REPRESENTED BY ITS AUTHORIZED OFFICER

    2     V. R. RAMAKRISHNAN
          87, 11TH CROSS ROAD, INDIRA NAGAR,
          BANGALORE, KARNATAKA, PIN - 560 038.

          BY ADV P.PAULOCHAN ANTONY




     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
22.12.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 W.P.(C)No.41984/2022                 2




                          JUDGMENT

Petitioner is a tenant in respect of a property belonging to

the 2nd respondent, who availed credit facilities from the 1 st

respondent Bank. The petitioner is stated to be running a

lodging and restaurant business in the building in question. The

petitioner is aggrieved by the fact that the 1 st respondent Bank is

proceeding to take physical possession of the secured asset

without even giving to the petitioner a breathing time to approach

the Tribunal.

2. It is pointed out by the learned counsel appearing for

the petitioner that the petitioner had initially filed a suit and was

enjoying an order of injunction till 20-12-2022. It is submitted that

the plaint was rejected only on 20-12-2022 and the petitioner has

not even obtained a certified copy of the order rejecting the plaint.

It is submitted that the petitioner intends to approach the Debts

Recovery Tribunal to challenge the proceedings for taking physical

possession, as the rights of the petitioner as a tenant has been

defeated by resorting to the proceedings under the SARFAESI Act.

3. The learned counsel appearing for the respondent Bank

submits that physical possession of the secured asset has already

been taken today (22-12-2022). With reference to certain

photographs, it is submitted that the process of taking of physical

possession of the secured asset has been completed and therefore

the question of granting of some protection to the petitioner to

enable him to approach the Debts Recovery Tribunal does not

arise for consideration in this case. It is also submitted that the

petitioner is not claiming under any registered deed and therefore

the petitioner has no right in the premises.

4. The learned counsel appearing for the petitioner would

submit that it was grossly improper and unfair for the respondent

Bank to take physical possession after knowing well that this writ

petition was coming up for consideration of this Court today. It is

submitted that the act of taking physical possession of the secured

asset, is an attempt to ensure that this writ petition become

infructuous by the time it is taken up for consideration.

5. Having heard the learned counsel appearing for the

petitioner and the learned counsel appearing for the 1 st

respondent Bank, I am of the opinion that it would be improper for

this Court to now direct the physical possession of the secured

asset to be restored to the petitioner considering the fact that the

process of taking physical possession of the secured asset has

already been completed. However, I must observe that when this

writ petition was listed for consideration today and this fact was

known to the 1st respondent Bank, it ought to have waited till this

matter is taken into consideration before taking the physical

possession of the secured asset.

6. This writ petition will stand disposed of directing that if

the petitioner files a Securitisation Application under Section 17 of

the SARFAESI Act, within a period of one week from today, the

Debts Recovery Tribunal shall endeavour to consider the

Interlocutory Application filed in the same, within a period of two

weeks from the date on which the Securitisation Application has

been filed. The status quo as on today shall be maintained till

orders are passed by the Tribunal as directed above.

Sd/-

GOPINATH P.

JUDGE ats

APPENDIX OF WP(C) 41984/2022

PETITIONER EXHIBITS

Exhibit P1 A TRUE COPY OF THE DEED DATED 21-04-2014 ENTERED BETWEEN THE 2ND RESPONDENT HEREIN AND THE PETITIONER

Exhibit P2 A TRUE COPY OF THE CUSTOMER REGISTER MAINTAINED BY THE PETITIONER WITH RESPECT TO THE LEASED PREMISES

Exhibit P3 A TRUE COPY OF THE MONTHLY RENT RECEIPT DATED 06-04-2014 RECEIVED BY THE 2ND RESPONDENT FROM THE PETITIONER WITH RESPECT TO THE LEASED PREMISES

Exhibit P4 A TRUE COPY OF THE MONTHLY RENT RECEIPT DATED 09-05-2016 RECEIVED BY THE 2ND RESPONDENT FROM THE PETITIONER WITH RESPECT TO THE LEASED PREMISES

Exhibit5 A TRUE COPY OF THE MONTHLY RENT RECEIPT DATED 11-10-2022 RECEIVED BY THE 2ND RESPONDENT FROM THE PETITIONER WITH RESPECT TO THE LEASED PREMISES

Exhibit P6 A TRUE COPY OF THE MONTHLY RENT RECEIPT DATED 12-09-2022 RECEIVED BY THE 2ND RESPONDENT FROM THE PETITIONER WITH RESPECT TO THE LEASED PREMISES

Exhibit P7 . A TRUE COPY OF THE NO OBJECTION ISSUED BY THE 2ND RESPONDENT DATED 22-03-2012 WITH RESPECT TO THE LEASED PREMISES

Exhibit8 A TRUE COPY OF THE PLAINT FILED BY THE PETITIONER IN OS NO. 214/2022 BEFORE THE COURT OF MUNSIFF, KALPETTA

Exhibit P9 A TRUE COPY OF ORDER DATED 19-11-2022 ISSUED BY MUNSIFF COURT, KALPETTA IN INTERLOCUTORY APPLICATION NO. 2/2022 IN OS NO. 214/2022

Exhibit P10 A TRUE COPY OF THE DAILY STATUS PAGE UNDER THE E-COURTS SERVICES DATED 20-12-2022 UPLOADED WITH RESPECT TO OS NO. 214/2022, MUNSIFF COURT, KALPETTA