State Bank Of India vs Circle Inspector Of Police
2024 Latest Caselaw 9133 Ker

Kerala High Court

State Bank Of India vs Circle Inspector Of Police on 3 April, 2024

Author: N.Nagaresh

Bench: N.Nagaresh

               IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                 PRESENT
                   THE HONOURABLE MR.JUSTICE N.NAGARESH
     WEDNESDAY, THE 3RD DAY OF APRIL 2024 / 14TH CHAITHRA, 1946
                          WP(C) NO. 9705 OF 2024
PETITIONER:

              STATE BANK OF INDIA
              STRESSED ASSET RECOVERY BRANCH-II R.S.BUILDING,
              MG ROAD ERNAKULAM- 682016,
              REPRESENTED BY ITS CHIEF MANAGER,
              PIN - 682016

              BY ADVS.
              M.JITHESH MENON


RESPONDENTS:

     1        CIRCLE INSPECTOR OF POLICE
              ANTHIKAD POLICE STATION ANTHIKAD THRISSUR,
              PIN - 680641
     2        RIJU K.M
              S/O MOHANAN K K
              KARTHIKAPPILY HOUSE
              KATOOR PO, THRISSUR, PIN - 680702
     3        RAHIBALA
              W/O SURESH
              CHAKITHARA HOUSE
              PUTHENPEEDIKA(PO) THRISSUR, PIN - 690642
     4        SURESH
              S/O NARAYANAN
              CHAKITHARA HOUSE, PUTHENPEEDIKA(PO)
              THRISSUR, PIN - 690642

              BY ADVS.
              SRI.LINDONS C.DAVIS
              SMT.REKHA C.NAIR-SR.GOVERNMENT PLEADER
              E.U.DHANYA(K/672/2006)
              V.C.VALSAN(K/269/2002)
              N.S.SHAMILA(K/222/2016)
              CHINJU P. JOYIES(K/894/2016)
 WP(C) No.9705 Of 2024
                        2




     THIS WRIT PETITION (CIVIL) HAVING COME UP   FOR
ADMISSION ON 03.04.2024, THE COURT ON THE SAME   DAY
DELIVERED THE FOLLOWING:
 WP(C) No.9705 Of 2024
                                 3




                          JUDGMENT

Dated this the 3rd day of April, 2024

The petitioner-Bank is the secured creditor. The 2nd

respondent is the borrower. Respondents 3 and 4 claims to be

a tenant under the 2nd respondent. On 08.07.2021 the 2 nd

respondent approached RASMEC Guruvayur Branch of the

petitioner for a credit facility. Considering the said request, the

RASMEC Guruvayur branch sanctioned a credit facility of

₹1,52,67,089 in the form of a Housing Loan and Suraksha

Loan by depositing the title deeds relating to an extent of

22.69 Ares of land.

2. Since the loan account was classified as NPA, the

petitioner issued a demand notice under Section 13(2) of the

Securitisation and Reconstruction of Financial Assets and

Enforcement of Security Interest Act, 2002. On expiry of the

60 days as mentioned in Ext.P4, the petitioner took symbolic WP(C) No.9705 Of 2024

possession of the secured asset on 18.08.2023.

3. The petitioner approached the Chief Judicial

Magistrate's Court filing an application under Section 14 of the

Securitisation and Reconstruction of Financial Assets and

Enforcement of Security Interest Act, 2002. The Court

appointed an Advocate Commissioner to take possession of

the secured asset, by order dated 20.09.2023. The Advocate

Commissioner took possession of the secured asset on

29.12.2023. Later, it was noticed that respondents 2 to 4

trespassed into the secured asset and started to live there.

4. Thereafter, the petitioner submitted a complaint

before the 1st respondent on 28.02.2024. The 1 st respondent

visited the premises on 28.02.2024 and the petitioner was

also present there. Respondents 3 and 4 raised a claim of

tenancy and submitted that they have moved the Rent

Controller / Accommodation Controller by an application dated

23.02.2024. Accordingly, the 1st respondent did not take WP(C) No.9705 Of 2024

further action and returned from the secured asset without

taking any legal action. Aggrieved by the inaction of the 1 st

respondent to act on the complaint and remove respondents 2

to 4 from the secured asset that the petitioner has approached

this Court filing this writ petition.

5. Though notice was issued to respondents 2 to 4,

the 2nd respondent, who is the borrower, did not appear before

this Court. Respondents 3 and 4 entered appearance through

counsel and filed counter affidavit. In the counter affidavit, the

3rd respondent submitted that the respondents have valid

tenancy as per Ext.R3(a) Rent Agreement dated 14.07.2021.

The Rent Agreement would expire only on 14.07.2026. The

mortgage was executed only on 03.09.2021, that is after

Ext.R3(a) Rent Agreement.

6. The 3rd respondent further submitted that she is

living in the property. The petitioner Bank had full knowledge

of the Rent Agreement between the 3 rd respondent and the 2nd WP(C) No.9705 Of 2024

respondent. Suppressing that fact, the petitioners have

obtained orders from the Chief Judicial Magistrate's Court. A

petition under Article 226 of the Constitution of India is a

discretionary remedy. When the Bank has suppressed

material facts before the CJM Court and has obtained orders,

this Court need not exercise the discretionary jurisdiction in

favour of the petitioners.

7. The 3rd respondent has filed a petition before the

Rent Controller, which is pending. In the circumstances, as

respondents 3 and 4 are in legal possession of the property,

no orders can be passed in favour of the petitioner to take

over the possession of the property using police force,

contended the counsel for respondents 3 and 4.

8. I have heard the learned counsel for the petitioner,

the learned Government Pleader representing the 1 st

respondent and the learned Counsel representing

respondents 3 and 4.

WP(C) No.9705 Of 2024

9. The impact of taking over of possession of a

property through the assistance of a Court Commissioner

under Section 14 of the Securitisation and Reconstruction of

Financial Assets and Enforcement of Security Interest Act,

2002, came up for consideration before this Court in

Kumaran A. A v. Superintendent of Police, Thrissur and

others [2022 (3) KLT 672]. This Court held that the purport of

the Act is to divest the owner of a property in the enforcement

of security interest and initiate measures to wipe off the

liability by resorting to measures including sale. If measures

taken for dispossession and consequent sale are inter

meddled by persons like respondents 4 and 5, it would result

in a mockery of the rule of law. The will of the people reflected

through the legislation will be seriously infringed, if the Court

remains a mute spectator.

10. In the instant case, the borrowers had broken the

locks and forcibly repossessed the secured asset which had WP(C) No.9705 Of 2024

by then become the property of the petitioner. The

dispossession of respondents 4 and 5 under Section 14 of the

Act cannot be interfered with or infringed upon by any person

after taking law into their own hands. When such illegal

actions are taken, rule of law requires this Court to issue

directions to the police force of the State to forcefully remove

such trespassers.

11. In the present case, it is not in dispute that

pursuant to the orders of the Chief Judicial Magistrate's Court

under Section 14 of the Securitisation and Reconstruction of

Financial Assets and Enforcement of Security Interest Act,

2002, the Advocate Commissioner has taken possession of

the Secured Assets mortgaged by the 2nd respondent, on

29.12.2023. The said proceedings are not under challenge

before any competent court. In such circumstances, any

continued possession by respondents 2, 3 or 4 can only be

treated as trespass into the property. WP(C) No.9705 Of 2024

12. The counsel for respondents 3 and 4 would point

out that the judgment in Kumaran A. A. (supra), was in

respect of a trespass by a borrower. Respondents 3 and 4

have a valid tenancy, evidenced by a Rent Agreement. The

taking over of the property was after the execution of the Rent

Agreement. Therefore, the said judgment will not come to the

help of the petitioners.

13. If respondents 3 and 4 have valid tenancy and seek

possession of the building on that basis, respondents 3 and 4

will have to approach the competent Tribunal, as the

Securitisation and Reconstruction of Financial Assets and

Enforcement of Security Interest Act, 2002 has been

amended and Section 17(4-A)) has been inserted in the Act,

2002. In the facts and circumstances of the case, I am

inclined to grant relief to the petitioner.

The writ petition is therefore disposed of commanding

the 1st respondent to take immediate action on Ext.P8 and WP(C) No.9705 Of 2024

cause such steps to remove respondents 2 to 4 from the

property scheduled in Ext.P2 Deed and restore the property to

the petitioner.

Sd/-

N.NAGARESH JUDGE hmh WP(C) No.9705 Of 2024

APPENDIX OF WP(C) 9705/2024

PETITIONER EXHIBITS Exhibit P1 COPY OF THE LETTER OF ARRANGEMENT DATED 9-7-2021 Exhibit P 2 COPY OF THE TITLE DEED NO 791 OF 2021 DATED 14-7-2021 Exhibit P3 COPY OF THE LETTER DATED 3-9-2021 Exhibit P 4 COPY OF THE DEMAND NOTICE DATED 15-5-

Exhibit P5 COPY OF NOTICE DATED 18-8-2023 Exhibit P6 COPY OF THE ORDER DATED 20-9-2023 IN CRL.M.P NO 8054 OF 2023 ON THE FILES OF CHIEF JUDICIAL MAGISTRATE COURT THRISSUR ExhibitP7 COPY OF THE REPORT SUBMITTED BY THE ADVOCATE COMMISSIONER DATED 29-12-2023 IN C.M.P NO 8054 OF 2023 Exhibit P8 COPY OF THE COMPLAINT DATED 28.02.2024 FILED BY THE PETITIONER BEFORE THE IST RESPONDENT Exhibit P9 COPY OF THE RECEIPT EVIDENCING THE RECEIPT OF THE COMPLAINT Exhibit P10 PHOTOGRAPH EVIDENCING THE TRESPASS BY THE RESPONDENTS 2 TO 4 Exhibit P11 PHOTOGRAPH EVIDENCING THE TRESPASS BY THE RESPONDENTS 2 TO 4 RESPONDENT EXHIBITS EXHIBIT R3(A) A COPY OF THE RENT AGREEMENT DATED 14.07.2021.

EXHIBIT R3(B) A COPY OF THE LICENSE DATED 15.09.2023 ISSUED FROM THE ANTHIKKAD GRAMA PANCHAYAT.

EXHIBIT R3(C) A COPY OF THE PETITION FILED BY THE RESPONDENTS HEREIN BEFORE THE RENT ACCOMMODATION CONTROLLER, THRISSUR, DATED 23.02.2024 WHICH IS NUMBERED AS C6/719969/24.