Kerala High Court
Irinjalakuda Town Co Operative Bank Ltd vs The District Police Chief on 28 June, 2024
Author: N.Nagaresh
Bench: N.Nagaresh
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE N.NAGARESH
FRIDAY, THE 28TH DAY OF JUNE 2024 / 7TH ASHADHA, 1946
WP(C) NO. 12324 OF 2024
PETITIONER:
IRINJALAKUDA TOWN CO OPERATIVE BANK LTD.,
NO.55,HEAD OFFICE, TANA SOUTH,
IRINJALAKUDA,680121.
REPRESENTED BY ITS AUTHORISED OFFICER
MR. T.K.DILEEP KUMAR, PIN - 680121
BY ADVS.
P.PAULOCHAN ANTONY
SREEJITH K.
RESPONDENTS:
1 THE DISTRICT POLICE CHIEF,
DISTRICT POLICE OFFICE, RAMAVARMAPURAM RD,
PALLIMOOLA, MANNUMKAD, RAMAVARMAPURAM,
THRISSUR, KERALA, PIN - 680631
2 THE STATION HOUSE OFFICER,
VELIKULANGARA POLICE STATION,VELLIKULANGARA PS,
THRISSUR RURAL, KERALA, PIN - 680699
3 MR.SANTO MATHEW ,
AGED 49 YEARS
S/O. MATHEW, NELLIKUNNEL HOUSE,
CHETTIKULAM P.O. CHALAKUDY, PIN - 680307
4 MR. JOBY MATHEW ,
AGED 50 YEARS
S/O. MATHEW, NELLIKUNNEL HOUSE,
CHETTIKULAM P.O. CHALAKUDY, PIN - 680307
BY SRI.BINOY DAVIS, GOVERNMENT PLEADER
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY
HEARD ON 28.06.2024, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
W.P.(C) No.12324/2024
:2:
N. NAGARESH, J.
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W.P.(C) No.12324 of 2024
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Dated this the 28th day of June, 2024
JUDGMENT
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The petitioner, a Co-operative Bank, seeks to
direct respondents 1 and 2 to provide necessary police
protection in removing respondents 3 and 4 and his people
from continuing criminal trespass in the immovable property
having an extent of 9.71 Ares, 20.84 Ares, 11.53 Ares, 8.09
Ares in Survey No.780/2 in Kuttichira Village, Chalakkudy
Taluk, Thrissur District.
2. The petitioner states that they advanced a loan of
₹1,24,00,000/- accepting mortgage of the afore extent of
land. Respondents 3 and 4 committed default in repayment
of loan and the loan account was declared as NPA. The
petitioner invoked the provisions of the Securitisation and
Reconstruction of Financial Assets and Enforcement of
Security Interest Act, 2002. Symbolic possession of the
property was taken over with notice. The property was put to
sale and the petitioner-Bank themselves purchased the
property in the auction held on 04.04.2022.
3. The petitioner thereafter submitted an application
to the Chief Judicial Magistrate, Thrissur invoking Section 14
of the Securitisation and Reconstruction of Financial Assets
and Enforcement of Security Interest Act, 2002. M.C.
No.880/2022 was allowed and the Advocate Commissioner
appointed by the Chief Judicial Magistrate took physical
possession of the property on 04.10.2023.
4. Subsequently, the petitioner found that
respondents 3 and 4 along with family including a bedridden
mother have encroached into the property by breaking open
the residential building and are staying in the said property.
The petitioner requested respondents 3 and 4 to vacate the
petition schedule property which request was not acceded to
by respondents 3 and 4. The petitioner thereafter filed
Exts.P4 and P5 police complaints. Exts.P4 and P5 were also
of no avail. The petitioner therefore prays to direct the 1 st
respondent to provide necessary police protection and
remove respondents 3 and 4 from the building in question.
5. I have heard the learned counsel for the petitioner
and the learned Government Pleader representing
respondents 1 and 2.
6. Ext.P2 Commission report dated 26.10.2023
prepared by the Advocate Commissioner appointed by the
Chief Judicial Magistrate would indicate that the Advocate
Commissioner had taken possession of the property on
04.10.2023 on behalf of the petitioner. The Chief Judicial
Magistrate, Thrissur has also recorded taking of possession,
as per order dated 26.10.2023 in M.C. No.880/2022. In such
circumstances, entry of any parties including respondents 3
and 4 in the said premises can only be treated as trespass.
7. In Dewan Housing Finance Corporation v.
Superintendent of Police, Malappuram and others [2018
(3) KLT 402], this Court has held that the exercise of right by
the Bank to take possession of the secured asset is a
statutory right under the SARFAESI Act. When such
statutory rights are exercised by a secured creditor, it is not
open for any person to trespass into such property which has
already been taken possession of. If such attitude is
permitted, the statutory right of the secured creditor will
become an eyewash and it may not be possible for the Bank
to realise the secured debt.
The writ petition is therefore allowed.
Respondents 1 and 2 are directed to provide necessary
police protection to remove respondents 3 and 4 and
anybody claiming under them from continuing criminal
trespass in the immovable property in question.
Sd/-
N. NAGARESH, JUDGE
aks/18.07.2024
APPENDIX OF WP(C) 12324/2024
PETITIONER'S EXHIBITS
Exhibit P1 VIRTUE OF THE DECISION NO.12 DATED
12.06.2020 OF THE BOARD OF DIRECTORS
OF THE BANK
Exhibit P2 COMMISSION REPORT DATED 26.10.2023 WAS
FILED BEFORE THE CJM ,THRISSUR
Exhibit P3 TRUE COPY OF THE ORDER OF CJM,
THRISSUR DATED 26.10.2023 IN
MC/880/2022
Exhibit P4 A TRUE COPY OF THE POLICE COMPLAINT
DATED 31-10-2023
Exhibit P5 A TRUE COPY OF THE POLICE COMPLAINT
RECEIPT DATED 31-10-2023
