Kerala High Court
Housing Development Finance ... vs Varkey Joseph on 23 May, 2025
Author: P.V.Kunhikrishnan
Bench: P.V.Kunhikrishnan
2025:KER:35659
OP(CRL.) NO. 214 OF 2020
1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
FRIDAY, THE 23RD DAY OF MAY 2025 / 2ND JYAISHTA, 1947
OP(CRL.) NO. 214 OF 2020
PETITIONER/S:
HOUSING DEVELOPMENT FINANCE CORPORATION LIMITED
(HDFC LTD. IN SHORT), RAMON HOUSE, 169 BACK BAY
RECLAMATION, MUMBAI - 400 020, REPRESENTED BY THE
AUTHORISED OFFICER, MR.SACHIN A.S., S/O.SHANAVAS,
AGED 39 YEARS, HDFC HOUSE, 3RD FLOOR, RAVIPURAM
JUNCTION, M.G.ROAD, KOCHI - 682 015.
BY ADVS. C.P.SAJI
SMT.P.DEEPA MOHAN
RESPONDENT/S:
1 VARKEY JOSEPH
S/O.JOSEPH, THAMMARAKATU HOUSE, PADAMUKAM P.O.,
IDUKKI TOWNSHIP, IDUKKI - 685 604.
2 GRACYKUTTY JOSEPH
W/O.VARKEY JOSEPH, THAMMARAKATU HOUSE, PADAMUKAM
P.O., IDUKKI TOWNSHIP, IDUKKI - 685 604.
3 SHINOY JOSEPH
S/O.VARKEY JOSEPH, THAMMARAKATU HOUSE, PADAMUKAM
P.O., IDUKKI TOWNSHIP, IDUKKI- 685 604.
BY ADV SHRI.GEORGE SEBASTIAN
THIS OP (CRIMINAL) HAVING COME UP FOR ADMISSION ON
23.05.2025, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
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OP(CRL.) NO. 214 OF 2020
2
P.V. KUNHIKRISHNAN, J.
--------------------------------
O.P.(Crl.).No.214 of 2020
----------------------------------------------
Dated this the 23rd day of May, 2025
JUDGMENT
This writ petition is filed with following prayers:
i. Call for the records in M.C.No.48/2020 from the
court of the learned Chief Judicial Magistrate,
Thodupuzha and peruse the same and set aside the
Ext.P6 order and to direct learned Chief Judicial
Magistrate, Thodupuzha to give required assistance
as prayed for in Exhibit-P5 petition.
ii. Grant such other reliefs that are found necessary by
this Hon'ble Court in the facts and circumstances of
the case.
(SIC)
2. This original petition is filed challenging Ext.P6 order
passed by the Chief Judicial Magistrate, Thodupuzha. M.C.
No.48/2020 was filed by the petitioner herein under Section 14
of the Securitisation and Reconstruction of Financial Assets and
Enforcement of Security Interest Act, 2002 (for short, SARFAESI
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OP(CRL.) NO. 214 OF 2020
Act), for handing over the physical possession of the secured
assets to the petitioner. The learned Magistrate dismissed the
same as per Ext.P6 order. Aggrieved by the same, this original
petition is filed.
3. Heard.
4. This Court perused Ext.P6 order. The relevant
portion of Ext.P6 is extracted hereunder:
"4. Once the petitioner had already availed
the remedy under Section 14 of the Securitisation
and Reconstruction of Financial Assets And
Enforcement of Security Interest Act, 2002 with
respect to the same loan transaction and the
petitioner was put in possession of the very same
petition schedule property. When the said remedy
was once availed, there is no question of availing
the same once again. When the petitioner was put
in possession of the petition schedule property by
invoking Section 14 of the Securitisation and
Reconstruction of Financial Assets And
Enforcement of Security Interest Act, any
subsequent trespass by any person will not entitle
the petitioner to avail the same remedy under the
Securitisation and Reconstruction of Financial
Assets And Enforcement of Security Interest Act. If
there was any subsequent trespass after availing
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OP(CRL.) NO. 214 OF 2020
the remedy under Section 14 of the Securitisation
and Reconstruction of Financial Assets And
Enforcement of Security Interest Act. Proper
remedy is not the present petition.
5. Petitioner contends that after the disposal
of M.C.222/17, there was a case before the Debt
Recovery Tribunal. Debt Recovery Tribunal had not
ordered to reinstate the respondents in the
property. This is a clear case of trespass. It is a
pure civil dispute. It has no connection with the
order of the Debt Recovery Tribunal.
6. In the light of the above discussion, this
court finds that the petition under Section 14 of
the Securitisation and Reconstruction of Financial
Assets And Enforcement of Security Interest Act is
not the proper remedy and the present petition is
not maintainable. It is liable to be dismissed.
7. In the result, this petition is dismissed."
5. I see no reason to interfere with the above finding.
Once an application under Section 14 of the SARFAESI Act is
entertained and physical possession of the property was given.
In such circumstances, a second petition need not be
entertained. As observed in Ext.P6 order, if any civil rights of
the petitioner, after taking possession of the property, is
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OP(CRL.) NO. 214 OF 2020
violated, the petitioner is free to approach the competent court
in accordance with law.
With the above observation, this original petition is
dismissed.
sd/-
P.V.KUNHIKRISHNAN
JV JUDGE
2025:KER:35659
OP(CRL.) NO. 214 OF 2020
APPENDIX OF OP(CRL.) 214/2020
PETITIONER EXHIBITS
EXHIBIT P1 TRUE COPY OF THE DEMAND NOTICE DATED
12/12/2016 ISSUED TO THE RESPONDENTS BY
THE PETITIONER.
EXHIBIT P2 TRUE COPY OF THE ORDER DATED 22/02/2017
IN M.C.NO.222/2017 OF THE LEARNED CHIEF
JUDICIAL MAGISTRATE THODUPUZHA.
EXHIBIT P3 TRUE COPY OF THE MAHAZER PREPARED BY THE
ADVOCATE COMMISSIONER DATED 28/03/2017.
EXHIBIT P4 TRUE COPY OF THE LETTER DATED 28/3/2017
ISSUED BY THE 1ST RESPONDENT TO THE
PETITIONER AND ITS ENGLISH TRANSLATION.
EXHIBIT P5 TRUE COPY OF THE PETITION NO MC 48/2020
BEFORE THE CHIEF JUDICIAL MAGISTRATE
THODUPUZHA DATED 12/02/2020.
EXHIBIT P6 TRUE COPY OF THE ORDER DATED 28/02/2020
IN MC 48/2020 OF THE LEARNED CHIEF
JUDICIAL MAGISTRATE THODUPUZHA.
