Kerala High Court
Babu Francis vs Jose Francis on 23 February, 2024
Author: N.Nagaresh
Bench: N.Nagaresh
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE N.NAGARESH
FRIDAY, THE 23RD DAY OF FEBRUARY 2024 / 4TH PHALGUNA, 1945
WP(C) NO. 6511 OF 2024
PETITIONER:
BABU FRANCIS.
AGED 55 YEARS
S/O.FRANCIS, MANNULLI, ELAMKULAM VILLAGE,
KANAYANNUR TALUK, KADAVANTHRA.P.O..,
KOCHI ., PIN - 682020
BY ADV P.USHAKUMARI
RESPONDENTS:
1 JOSE FRANCIS,
AGED 50 YEARS
S/O.FRANCIS, MANNULLI, ELAMKULAM VILLAGE,
KANAYANNUR TALUK, KADAVANTHRA.P.O.,
KOCHI, PIN - 682020
2 THE IDBI BANK LTD.,
RETAIL ASSET CENTRE, 2ND FLOOR,
IDBI BUILDING, NEAR PASSPORT OFFICE,
KOCHI,
REPRESENTED BY ITS MANAGER., PIN - 682036
BY ADV C.AJITH KUMAR
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
23.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C) NO.6511 OF 2024
2
JUDGMENT
Dated this the 23rd day of February, 2024
The petitioner, who is brother of the 1st respondent, has
approached this Court seeking to direct the 2nd respondent-
Bank to take steps under the Securitisation and
Reconstruction of Financial Assets and Enforcement of
Security Interest Act, 2002, only after demarcating the
boundary of the property owned by the petitioner and the 1 st
respondent, which is mortgaged.
2. The petitioner states that the property of the
petitioner and the 1st respondent is lying contiguously and
the 1st respondent has mortgaged the property with the 2 nd
respondent for obtaining financial advances.
3. On the failure of the 1st respondent to pay the
amount, the 2nd respondent-Bank has initiated Securitisation
proceedings. Now, invoking Section 14 of the Securitisation
WP(C) NO.6511 OF 2024
and Reconstruction of Financial Assets and Enforcement of
Security Interest Act, 2002, the Bank is trying to take over
the possession of the property.
4. The petitioner would submit that the property of
the petitioner and the 1st respondent are not clearly
demarcated. Under the guise of taking over property of the
1st respondent, the Bank is to take over the possession of
the property of the petitioner also.
5. The petitioner states that the petitioner has
already approached the Civil Court filing an Original Suit in
which the Bank is also a party. In spite of being a party to the
Suit and knowing the genuine dispute raised by the
petitioner, the Bank is attempting to illegally take over the
possession of the petitioner's property invoking Section 14 of
the Securitisation and Reconstruction of Financial Assets
and Enforcement of Security Interest Act, 2002.
6. Standing Counsel entered appearance on behalf
of the 2nd respondent and resisted the writ petition. The
WP(C) NO.6511 OF 2024
Standing Counsel denied all the allegations made by the
petitioner in the writ petition. On behalf of the 2 nd respondent,
it is submitted that the petitioner and the 1 st respondent are
hand in glove. The suit filed before the Munsiff's Court and
these writ proceedings are intended to delay and defeat the
recovery proceedings by the 2nd respondent. The Bank has
no intention to take over possession of the petitioner's
property. According to the 2nd respondent, the property is
clearly demarcated.
7. I have heard the learned counsel for the petitioner
and the learned Standing Counsel representing the 2 nd
respondent.
8. The allegation of the petitioner is that there is no
clear demarcation between the property of the petitioner and
the 1st respondent. Therefore, taking over possession of the
property of the 1st respondent by the 2nd respondent, would
amount to taking over a part of the petitioner's property also.
WP(C) NO.6511 OF 2024
9. From the pleadings it is evident that the petitioner
has filed O.S.No.1263 of 2019 before the Munsiff's Court,
Ernakulam for fixation of boundary and consequential
injunction. The 2nd respondent is not a party to the said suit.
Subsequently, the petitioner has filed O.S.No.204 of 2021
before the Munsiff's Court, Ernakulam, wherein the 2 nd
respondent is also a defendant.
10. The dispute raised by the petitioner is regarding
threat of taking over the petitioner's property by the 2 nd
respondent-Bank. This is purely a civil dispute between the
petitioner and the Bank. The petitioner has already
approached the Civil Court for appropriate relief.
In the circumstances, I do not find any reason to
entertain this writ petition. The writ petition is dismissed.
Sd/-
N.NAGARESH
JUDGE
hmh
WP(C) NO.6511 OF 2024
APPENDIX OF WP(C) 6511/2024
PETITIONER EXHIBITS
Exhibit P1 A TRUE COPY OF THE PLAINT IN
O.S.NO.1263/2019 DATED 30.09.2019
PENDING BEFORE THE HON'BLE MUNSIFF'S
COURT ERNAKULAM
Exhibit P2 A TRUE COPY OF PLAINT IN
O.S.NO.204/2021 DATED 17.02.2021
PENDING BEFORE THE MUNSIFF'S COURT
ERNAKULAM
Exhibit P3 A TRUE COPY OF THE WRITTEN STATEMENT
FILED BY THE 2ND RESPONDENT DATED
30.09.2019
