Kerala High Court
Thulasidharan Pillai R vs The Karur Vysya Bank Limited on 2 February, 2026
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WPC 1741/26
2026:KER:9509
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE BASANT BALAJI
MONDAY, THE 2ND DAY OF FEBRUARY 2026 / 13TH MAGHA, 1947
WP(C) NO. 1741 OF 2026
MC NO.925 OF 2025 OF ADDITIONAL CHIEF JUDICIAL MAGISTRATE, ERNAKULAM
PETITIONER/S:
1 THULASIDHARAN PILLAI R, AGED 63 YEARS
2292 THIRUNILATHU HOUSE,CHILAVANOOR SOUTH, KADAVANTHRA P.O,ERNAKULAM
682 020, NOW RESIDING AT 98A GEORGE EDEN ROAD, PANAMPILLY
NAGAR,ERNAKULAM, PIN - 682036
2 SUNIL KUMAR S, AGED 58 YEARS
16/422,MANIMANDHIRAM, KARUVELIPADI,THOPPUMPADI, ERNAKULAM 682 005,NOW
RESIDING AT 98A GEORGE EDEN ROAD,PANAMPILLY NAGAR, ERNAKULAM, PIN -
682036
3 V T SEBASTIAN, AGED 53 YEARS, VAZHAVILA PUTHENVEEDU,SOUTH
GIRINAGAR,BHAVANS SCHOOL,KADAVANTHRA P.O ERNAKULAM 682 020,NOW
RESIDING AT 98A GEORGE EDEN ROAD,PANAMPILLY NAGAR ERNAKULAM, PIN -
682036
BY ADV SHRI.VISWANATH SALISH
RESPONDENT/S:
1 THE KARUR VYSYA BANK LIMITED,REPRESENTED BY ITS AUTHORIZED SIGNATORY
ERNAKULAM DIVISIONAL OFFICE,40/1045C, 1ST FLOOR, AMRUTHA TOWERS,OPP.
MAHARAJA'S COLLEGE GROUND,M.G ROAD, ERNAKULAM, PIN - 682011
2 LAVY BASTIN THOMAS,AGED 65 YEARS, MUTHIRAVILA VEEDU, MATHILIL
DESOM,THRIKADAVOOR, KOLLAM, PIN - 691601
3 MARY DOLLY,EIFFEL NEST,THAZHUTHALA, KANNANALLOOR P.O,THRIKKOVILVATTAM
KOLLAM, PIN - 691576
4 ANIL KUMAR, AGED 56 YEARS, SUNIL NIVAS,39/5880, VAYALACHIRA PARAMBU,
PERUMANUR,KANAYANOOR TALUK, ERNAKULAM VILLAGE, PIN - 682015
OTHER PRESENT:
SRI. P. S. GEORGE, SC
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 02.02.2026, THE COURT
ON THE SAME DAY DELIVERED THE FOLLOWING:
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WPC 1741/26
2026:KER:9509
JUDGMENT
(Dated this the 2nd day of February 2026) Petitioners are the tenants in a 3 storied complex consisting of 3 apartments in 1.42 ares of property in Sy. Nos. 1018/4 and 1018/8 in Ernakulam village. Petitioners are in possession of the building and occupying each apartment, along with their family. They took the building on lease from the 4th respondent as per Ext.Nos.P1 to P3. The 4th respondent collected Rs.5,50,000/- from the 1st petitioner, Rs.6,00,000/- from the 2nd petitioner and Rs.7,00,000/- from the 3rd petitioner as security deposit. On 29.11.2014, the 4th respondent sold the property and building to the 2nd respondent. The 2nd respondent, at the time of purchase, was aware of the tenancy and he agreed to repay the security deposit as soon as possible.
2. Even after the lease period, the security deposit was not returned, and the petitioners are in possession as per the 3 WPC 1741/26 2026:KER:9509 terms of agreement from 2012 and 2013 onwards. The loan agreement with the 1st respondent bank was entered into by respondent Nos.2 and 3, the 2nd respondent being the borrower and the 3rd respondent as the guarantor. The title deeds in respect of the property were deposited with the 1st respondent bank for availing the loan. When there was default in repayment, the bank initiated proceedings under the SARFAESI Act and notice was issued under Section 13 of the Act to respondent Nos.2 and 3 followed by notice under Section 13(4). The 2nd respondent assured the petitioners that the loan will be closed, and no steps will be taken by the bank to evict the petitioners.
3. On 2.1.2026, an Advocate Commissioner affixed a notice of taking of physical possession of the building within 14 days. On enquiry, it was understood that the 1st respondent 4 WPC 1741/26 2026:KER:9509 Bank had approached the Additional C.J.M., Ernakulam by filing M.C. No.925 of 2025 and an order has been passed under Section 14 of the Act through Ext.P8. Though the 1st respondent was aware that the tenancy of the petitioners started in the year 2012 onwards, they were not made as parties to the notice under Section 14 of the Act. In such circumstances, the petitioners have approached this court to call for records relating to M.C. No.925 of 2025 on the files of Additional C.J.M. court, Ernakulam and to quash Ext.P8 order and for a further direction to respondents not to dispossess the petitioners from the residential building.
4. Heard the counsel, Shri.Viswanath Salish for the petitioners, the standing counsel Sri.P S George for the 1st respondent Bank and Sri.Lavy Bastin Thomas, the 2nd respondent appeared as party in person. 5 WPC 1741/26
2026:KER:9509
5. The contention raised by the counsel for petitioners is that the petitioners are the tenants of the building in question right from 2012 onwards. The mortgage was effected only in the year 2014 and therefore, they are legally entitled to continue in possession of the building, and they cannot be evicted by the 1st respondent under Section 14 of the Act.
6. The counsel for the bank submitted that the loan is taken by respondent Nos.2 and 3 by mortgaging the title deeds. When there was a default, they had initiated proceedings for recovery of the amounts and since there was restriction in taking physical possession, they had approached the Additional C.J.M. Court, Ernakulam under Section 14 of the Act and the learned C.J.M. has passed Ext.P8 order. There is no privity of contract between the petitioner and the 1st 6 WPC 1741/26 2026:KER:9509 respondent. If they are aggrieved by the steps taken, they will have to approach the D.R.T. under section 17 and cannot invoke jurisdiction of this court under Article 226 of the Constitution of India.
7. The party-in-person submitted that he had availed loan for purchase of property of building from the 4th respondent and the money obtained from the loan was given to the 4th respondent and he is absconding.
8. A Full Bench of this court in Pushpangadan N.P. and others v. Federal Bank Ltd. and others [2011 (4) KHC 40] had an occasion to consider the question whether the SARFAESI Act overriding on the Buildings (Lease and Rent Control) Act, 1965 (Kerala). It was held that the tenant inducted in the premises before creation of security interest cannot be summarily evicted under Sections 13(4) and 14 of 7 WPC 1741/26 2026:KER:9509 the SARFAESI Act. It was held that a tenant, whose right, title, interest or possession is affected by a measure taken by under Section 13(4) of the Act, is entitled to make an application to the DRT under Section 17 of the Act.
9. It was held in the said judgment, as follows:
"xxx xxxx xxxx
45. When an application is made under S.17 of the Securitisation Act by a person claiming to be a tenant under the borrower or any person under whom the borrower claims title, the Debts Recovery Tribunal has jurisdiction to entertain the application and to enquire into the question whether the applicant had any right, title or interest or possession anterior to the creation of the security interest and to what extent such interest could be protected. If the claim made by the applicant is found to be genuine and legal, appropriate orders can be passed by the Tribunal holding that: (a) his actual possession shall not be disturbed; (b) only symbolic possession shall be taken; (c) any sale shall be subject to the rights of the applicant; and/or (d) any other order or direction which is required in the facts and circumstances of the case.
46. Since the petitioners have an adequate, alternative and efficacious remedy to make an application to the Debts Recovery Tribunal under S.17 of the Securitisation Act, we decline the reliefs sought for in the Writ Petition. However, in the facts and circumstances of the case, the petitioners are permitted to file an application before the Tribunal under S.17 of the Securitisation Act, within a period of one month from today. If such an application is 8 WPC 1741/26 2026:KER:9509 filed within a month, the Debts Recovery Tribunal shall dispose of the same in accordance with law, treating the application as having been filed within the period of limitation."
In such circumstances, I am of the considered opinion that when the petitioners have adequate and alternate efficacious remedy, this court cannot grant the reliefs sought for, under Article 226 of the Constitution of India. Thus, the writ petition is disposed of without reliefs, but granting liberty to the petitioners to approach the Debt Recovery Tribunal (DRT) under Section 17 of the SARFAESI Act, in accordance with law.
Sd/-
BASANT BALAJI JUDGE dl/ 9 WPC 1741/26 2026:KER:9509 APPENDIX OF WP(C) NO. 1741 OF 2026 PETITIONER EXHIBITS Exhibit P1 THE TRUE COPY OF THE LEASE DEED EXECUTED BETWEEN THE 1ST PETITIONER AND THE 4TH RESPONDENT DATED 25.02.2012 Exhibit P2 THE TRUE COPY OF THE LEASE DEED EXECUTED BETWEEN THE 1ST PETITIONER AND THE 4TH RESPONDENT DATED 18.04.2013 Exhibit P3 THE TRUE COPY OF THE LEASE DEED EXECUTED BETWEEN THE 2ND PETITIONER AND THE 4TH RESPONDENT DATED 19.04.2013 Exhibit P4 THE TRUE COPY OF THE LOAN AGREEMENT DATED 28.11.2014 Exhibit P5 . THE TRUE COPY OF THE SECTION 13(2) NOTICE ISSUED BY THE 1ST RESPONDENT BANK DATED 21.10.2021 TO THE 2ND AND 3RD RESPONDENTS Exhibit P6 THE TRUE COPY OF THE SECTION 13(4) NOTICE ISSUED BY THE 1ST RESPONDENT BANK DATED 03.02.2022 Exhibit P7 THE TRUE COPY OF THE MC NO.925/2025 FILED BEFORE THE ADDITIONAL CHIEF JUDICIAL MAGISTRATE, ERNAKULAM BY THE 1ST RESPONDENT BANK DATED 06.08.2025 Exhibit P8 THE TRUE COPY OF THE ORDER DATED 27.11.2025 PASSED BY THE ADDITIONAL CHIEF JUDICIAL MAGISTRATE, ERNAKULAM IN M.C NO 925 OF 2025 Exhibit P9 THE TRUE COPY OF THE NOTICE ISSUED BY THE ADVOCATE COMMISSIONER IN MC 925 OF 2025 Exhibit P10 THE TRUE COPY OF THE LEGAL NOTICE DATED 27.12.2019 ISSUED BY THE 2ND RESPONDENT Exhibit P11 THE TRUE COPY OF THE REPLY NOTICE DATED 07.01.2020 ISSUED BY THE PETITIONERS TO THE 2ND RESPONDENT Exhibit P12 THE TRUE COPY OF PAYMENT RECEIPT OF THE KERALA WATER AUTHORITY BILL DATED 03.12.2025 PAID BY THE 1ST PETITIONER Exhibit P13 THE TRUE COPY OF PAYMENT RECEIPT OF THE ELECTRICITY BILL LEVIED BY KSEB DATED 20.12.2025 PAID BY THE 1ST PETITIONER