Kerala High Court
Sajikumar T.M vs The District Collector on 27 June, 2023
WPC 6830/2023 1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE T.R.RAVI
TUESDAY, 27TH DAY OF JUNE, 2023/6TH ASHADHA, 1945
WP(C) NO. 6830 OF 2023
PETITIONER:
SAJIKUMAR T.M,
AGED 48 YEARS
S/O. LATE THANKAPPAN MACHINGAPARAMBU
PAZHAVEEDU PO, ALAPPUZHA,
PIN - 688009
BY ADVS.
SRI SADCHITH.P.KURUP
SRI C.P.ANIL RAJ
SRI SIVA SURESH
RESPONDENTS:
1 THE DISTRICT COLLECTOR,
COLLECTORATE, ALAPPUZHA,
PIN - 688001
2 THE TAHSILDAR,
TALUK OFFICE AMBALAPPUZHA,
ALAPPUZHA, PIN - 688013
3 THE VILLAGE OFFICER,
PAZHAVEED VILLAGE OFFICE,
ALAPPUZHA, PIN - 688002
4 CANARA BANK,
ALAPPUZHA BRANCH, VSV BUILDING,
IRON BRIDGE PO, MULLAKKAL,
ALAPPUZHA,
REP. BY ITS BRANCH MANAGER,
PIN - 688001
5 SACHIN SHYAM
PROPRIETOR M/S. SKILDERZ DEVELOPERS
S/O. SHYAM RAJU, ARJUNAM
THIRUVAMBADY JUNCTION PO
ALAPPUZHA, PIN - 688002
WPC 6830/2023 2
6 SHYAM RAJU
S/O. PADMANABHAN ARJUNAM,
THIRUVAMBADY JUNCTION PO,
ALAPPUZHA, PIN - 688002
7 RAJEEV R
S/O. RAJAN K POOJA, RAJ BHAVAN EAST OF KOMALAPURAM SOUTH
ARYAD, ALAPPUZHA, PIN - 688521
BY ADVS.
SRI M.RAJEEV, GOVT.PLEADER
SRI ANIRUDH KADAVIL
SRI RENOY VINCENT
SRI M.J.RAJASREE
SRI K.V.ANIL
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
30.03.2023, THE COURT ON 27.6.2023 DELIVERED THE FOLLOWING:
WPC 6830/2023 3
T.R. RAVI, J.
--------------------------------------------
WP(C)No.6830 of 2023
--------------------------------------------
Dated this the 27th day of June, 2023
JUDGMENT
The writ petition has been filed praying to quash Exts.P3 and P9;
direct the 4th respondent not to interfere with the possession of the
petitioner with respect to the property scheduled in Ext.P3; and to
declare that the 4th respondent does not have any authority to
interfere with the petitioner's rights in the property occupied by him in
4.05 Ares located in Sy.No.619/1F of Pazhaveedu Village.
2. The petitioner claims to be a tenant of respondents 5 and
6, who had obtained a loan from the 4th respondent Bank. In
proceedings initiated under the SARFAESI Act against respondents 5
and 6, the aforesaid property was brought to sale, and the 7 th
respondent purchased the same in the auction. When physical
possession was sought to be taken by filing an application before the
Chief Judicial Magistrate, initially, an order was issued rejecting the
application stating that the petitioner was in possession as a tenant
prior to the mortgage and he could not be evicted. The 4 th respondent
challenged the said order before this Court in W.P.(C)No.28054 of
2021, which was allowed as per Ext.P7 judgment. The petitioner was
the 3rd respondent in the said writ petition. This Court in Ext.P7
specifically found that the Chief Judicial Magistrate has travelled
beyond the scope of Section 14 of the SARFAESI Act. This Court found
that the remedy available to any person who is objecting to the taking
of possession is by way of filing an application before the Debt
Recovery Tribunal, and admittedly, the 3rd respondent had not filed any
application seeking such reliefs. The Court also found that as there is
no registered lease agreement between the 3rd respondent and the
borrower, the 3rd respondent is not entitled to possession of the
secured asset for a period extending the time limit prescribed under
Section 107 of the Transfer of Property Act. Reliance was also placed
by this Court in the judgment of the Hon'ble Supreme Court in
Bajarang Shyamsundar Agarwal v. Central Bank of India
[(2019) 9 SCC 94]. This Court disposed of the writ petition with a
direction to the Chief Judicial Magistrate to pass fresh orders in the
light of the observations in the judgment as well as the law laid down
by the Hon'ble Supreme Court in Balkrishna Rama Tarle Dead
Thr.LRs & Anr. v. Phoenix ARC Private Limited & Ors. [2022 (5)
KLT OnLIne 1150 (SC)]. Pursuant to Ext.P7, the Chief Judicial
Magistrate issued orders appointing an Advocate Commissioner to take
possession, and Ext.P9 is the notice issued by the Advocate
Commissioner.
3. In the present writ petition, the petitioner contends that the
property that was put up for sale is shown to be situated in Mullakkal
Village, while the property in the possession of the petitioner is in
Pazhaveedu Village. It is also contended that the property is situated
in 'puramboke'. Documents are sought to be produced in support of
the said contention.
4. A counter affidavit has been filed by the 4th respondent
pointing out that the petitioner cannot have a claim against the title of
respondents 5 and 6. It is submitted that the properties were the
subject matter of purchase certificate No.301/1994 issued by the Land
Tribunal, Kollam, in S.M.No.1667/1994. It is also submitted that even
though there were typographical errors regarding the name of the
Village, as a matter of fact, the same certificate has been issued by the
4th respondent in favour of the 7 th respondent as Ext.R4(2), which
clearly shows that the property is in Pazhaveedu Village. It is also
submitted that in view of Ext.P7 judgment of this Court, which is
binding on the petitioner, no such claim can be entertained. It is also
submitted that in view of the judgment of the Hon'ble Supreme Court
in Union Bank of India v. Satyawati Tondon & Ors. (CDJ 2010 SC
651], a writ petition seeking to quash Exts.P3 and P9 is not
maintainable and is liable to be dismissed.
5. I have heard the counsel for the petitioner and the
respondent at length.
6. Even though this Court is not called upon to entertain such
a writ petition at the hands of a person who claims to be a tenant, but
not under a registered document, I deem it necessary to dispose of the
writ petition on its merits. I do not find any reason to grant any of the
prayers in this writ petition for reasons more than one. Firstly, the
petitioner is bound by Ext.P7 judgment of this Court wherein this Court
specifically held that the claim of the petitioner, who is not claiming to
be a tenant under a registered document, cannot be entertained in
view of the law laid down by the Hon'ble Supreme Court. Secondly,
this Court had specifically found that the remedy, if at all available to
the petitioner, is to prefer an application before the Debt Recovery
Tribunal, which had not been done even at the time of presenting the
earlier writ petition. The attempt of the petitioner is to raise a
collateral challenge in this writ petition under the guise of the
challenge to the order of the Chief Judicial Magistrate appointing an
Advocate Commissioner to take possession of the property.
The writ petition fails and is dismissed.
Sd/-
T.R. RAVI
JUDGE
dsn
APPENDIX OF WP(C) 6830/2023
PETITIONER EXHIBITS
EXHIBIT P1 TRUE COPY OF THE DEMAND NOTICE ISSUED TO THE
RESPONDENTS 5 & 6 ON 24.1.2020
EXHIBIT P2 TRUE COPY OF THE POSSESSION NOTICE 16/10/2020
ISSUED BY 4TH RESPONDENT
EXHIBIT P3 TRUE COPY OF THE APPLICATION UNDER SECTION
14(1) OF SARFAESI ACT FILED BY THE 4TH
RESPONDENT ON 09/12/2020 BEFORE THE CJM COURT
ALAPPUZHA
EXHIBIT P4 TRUE COPY OF THE SALE NOTICE DATED 24.3.2021
ISSUED BY THE 4TH RESPONDENT
EXHIBIT P5 TRUE COPY OF THE CONFIRMATION OF SALE DATED
29.4.2021 ISSUED BY THE 4TH RESPONDENT
EXHIBIT P6 TRUE COPY OF THE SALE CERTIFICATE DATED
02/06/2021ISSUED BY THE 4TH RESPONDENT TO THE
PETITIONER
EXHIBIT P7 TRUE COPY OF THE JUDGMENT DATED 19.12.2022 IN
WPC 28054/2021 BEFORE THIS HON'BLE COURT
EXHIBIT P8 TRUE COPY OF THE RELEVANT EXTRACT OF THE BASIC
TAX REGISTER IN SURVEY NO. 619/1F
EXHIBIT P9 TRUE COPY OF THE NOTICE DATED 20.2.2023 ISSUED
BY THE ADVOCATE COMMISSIONER
EXHIBIT P10 TRUE COPY OF SALE DEED NO.3176/1975 OF
ALAPPUZHA SUB REGISTRY, EXECUTEDBY THE OWNER
OF THE PROPERTY OBTAINED THROUGH EXT.R4(I).
RESPONDENT EXHIBITS
EXHIBIT R4 (1) A TRUE COPY OF THE PURCHASE CERTIFICATE
NO.301/1974 ISSUED BY LAND TRIBUNAL, KOLLAM IN
SM NO.1667/1974 DATED 06.11.1974 IN FAVOUR OF
SRI.NEELAKANDA PILLAI
EXHIBIT R4(2) A TRUE COPY OF THE SALE CERTIFICATE
NO.1077/2022 ISSUED BY THE 4TH RESPONDENT IN
FAVOUR OF THE 7TH RESPONDENT ON 19.03.2022
EXHIBIT R4(3) A TRUE COPY OF THE JUDGMENT IN VARIMADUGU OBI
REDDY VERSUS B. SREENIVASULU AND OTHERS IN
CIVIL APPEAL NO.8470/2022 DATED 16.11.2022 OF
SUPREME COURT OF INDIA
EXHIBIT R4(4) A TRUE COPY OF THE JUDGMENT IN UNITED BANK OF
INDIA VERSUS SATYAWATI TONDON AND OTHERS IN
CIVIL APPEAL NO. 5990 OF 2010 DATED 26.07.2010
OF SUPREME COURT OF INDIA
EXHIBIT R4(5) A TRUE COPY OF THE LETTER WITH REFERENCE
NO.162/63 DATED 21.03.2023 ISSUED BY THE 3RD
RESPONDENT IN FAVOUR OF 4TH RESPONDENT
EXHIBIT R4(6) A TRUE COPY OF THE BASIC TAX REGISTER OF
PAZHAVEEDU VILLAGE DATED 21.03.2023 ISSUED BY
THE 3RD RESPONDENT
EXHIBIT R4(7) A TRUE COPY OF THE NAME AND ADDRESS DETAILS OF
THE PATTADHAR DATED 21.03.2023 ISSUED BY THE
3RD RESPONDENT
EXHIBIT R4(8) A TRUE COPY OF THE THANDAPPER ACCOUNT NO.1758
DATED 21.03.2023 ISSUED BY THE 3RD RESPONDENT
EXHIBIT R4(9) A TRUE COPY OF THE THANDAPPER ACCOUNT NO.13979
DATED 21.03.2023 ISSUED BY THE 3RD RESPONDENT
EXHIBIT R4(10) A TRUE COPY OF THE THANDAPPER ACCOUNT NO.6888
DATED 21.03.2023 ISSUED BY THE 3RD RESPONDENT
EXHIBIT R4(11) A TRUE COPY OF THE THANDAPPER ACCOUNT NO.9905
DATED 21.03.2023 ISSUED BY THE 3RD RESPONDENT
EXHIBIT R4(12) A TRUE COPY OF THE THANDAPPER ACCOUNT NO.13730
DATED 21.03.2023 ISSUED BY THE 3RD RESPONDENT
