Kerala High Court
Kamalamma vs The South Indian Bank Ltd on 30 January, 2020
Equivalent citations: AIRONLINE 2020 KER 185
Author: S.Manikumar
Bench: S.Manikumar, Shaji P.Chaly
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
&
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
THURSDAY, THE 30TH DAY OF JANUARY 2020 / 10TH MAGHA, 1941
WA.No.177 OF 2020
AGAINST THE JUDGMENT IN WP(C) 19890/2019(I) OF HIGH COURT OF
KERALA
APPELLANTS/RESPONDENTS 4 AND 5:
1 KAMALAMMA
AGED 68 YEARS
W/O.LATE VENUGOPALAN, MUNNAM,PADINJATATHIL HOUSE,
AYATIL.P.O, KOLLAM-691021
2 PRAMOD KUMAR
S/O.LATE VENUGOPALAN, MUNNAM PADINJATATHIL HOUSE,
AYATIL.P.O, KOLLAM-691021
BY ADV. SRI.E.A.BIJUMON
RESPONDENTS/PETITIONER/RESPONDENTS 1 TO 3:
1 THE SOUTH INDIAN BANK LTD., A BANKING COMPANY
REGISTERED UNDER THE COMPANIES ACT 1913, HAVING ITS
REGISTERED OFFICER AT HEAD OFFICE, S.I.B HOUSE,
MISSION QUARTERS, P.B. NO.28, T.B.ROAD, THRISSUR -
680 001 AND ONE ITS ITS OFFICES AT DRT CELL, 2ND
FLOOR, SIB BUILDING, MARKET ROAD, ERNAKULAM, COCHIN -
35, REPRESENTED BY CHIEF MANAGER, MR.PRAMOD KUMAR
MENON.K.N.
2 STATION HOUSE OFFICER,
ERAVIPURAM POLICE STATION, ERAVIPURAM, KOLLAM-691021
3 RAJAN I.N, MOONAM PADINJATTATHIL, AYATHIL,
VADEKKAVILA. P.O.,
KOLLAM - 691010.
4 GIRIJA KUMARI MOONAM,
MOONAM PADINJATTATHIL, AYATHIL,
VADEKKAVILA. P.O.,
KOLLAM - 691010.
SRI.SURIN GEORGE IYPE.GP
THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 30.01.2020, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WA.No.177 OF 2020 2
JUDGMENT
S.MANIKUMAR,CJ Being aggrieved by the directions issued in the judgment dated 6/11/2019 in W.P.(C) No.19890/2019, directing the Station House Officer, Eravipuram Police Station, Eravipuram, Kollam, respondent No.1 therein, to look into the complaints given by the South Indian Bank Limited, Cochin, in Exts.P3 and P7, in accordance with law, within a period of four weeks from the date of receipt of a copy of the judgment in W.P.(C) No.19890/2019, instant writ appeal is filed.
2. Mr.Bijumon. E.A., learned counsel for the appellants, invited our attention to the various proceedings between the bank and the borrower, and the orders passed under section 14 of the SARFAESI Act, 2002 by the learned Chief Judicial Magistrate, Kollam in CMP No.8308/2011, directing physical possession of the mortgaged property and made submission that the appellants have right to continue the physical possession of the subject property, we are not inclined to accept the said contentions for the reason that the attempt of the appellants to claim right over the subject property mortgaged with the South Indian Bank Limited, Trivandrum, by filing an application in TSA No.477/2016(SA No.210/2013) dated WA.No.177 OF 2020 3 30.12.2016 before the Debts Recovery Tribunal - 2, Ernakulam has been rejected. So also, the writ petition filed by the appellants in W.P.(C) No. 16149/2012 has ended in dismissal. Said judgment made in W.P.(C) No.16149/2012 dated 8 th October, 2012 is reproduced hereunder:
" JUDGMENT Respondents 3 and 4 availed of a housing loan from the second respondent. Subsequently, the property acquired with the loan was mortgaged to the bank. Default was committed and that led to SARFAESI proceedings initiated by the bank. In a writ petition filed by respondents 3 and 4, an instalment facility was granted by this Court and the directions in the judgment were also not complied with.
2. Thereafter, the bank continued the action and brought the property for sale. At that stage, petitioners, the vendors of respondents 3 and 4, have filed this writ petition contending interalia that the document executed in favour of respondents 3 and 4 was not for conveying the property. On that basis, a direction requiring respondents 1 and 2 not to proceed against the assets of respondents 3 and 4 for realisation of their dues is sought for.
3. It appears that after mortgaging the property in favour of the bank, respondents 3 and 4 have re-conveyed the property to the petitioners also.
4. Insofar as this writ petition is concerned, the prayer WA.No.177 OF 2020 4 sought against the bank is not to continue the SARFAESI proceedings. The basis of such prayer is that the document executed by the petitioners in favour of respondents 3 and 4 is an invalid one. In my view, such a dispute is not a matter, which is capable of resolution in a proceedings under Section 226 of the Constitution of India and therefore, if at all the petitioners have such a case, it is for them to approach the appropriate forum.
Therefore, with that liberty, the writ petition is disposed of."
3. It is clear from the aforequoted judgment that the right claimed by the appellants over the subject property has been negatived the Tribunal as well as this Court.
4. Contending that the appellants have trespassed into the subject property, which was already taken possession by the Bank by invoking Section 14 of the SARFAESI Act, 2002, Bank has given Ext.P3 complaint dated 10.8.2012 and Ext.P7 dated 27.5.2019 to the Circle Inspector of Police, Eravipuram Police Station. For brevity, both complaints are extracted hereunder:
Ext.P3 complaint dated 10.8.2012 "SOUTH INDIAN Bank KLM/Gen/106/12-13 Dated:10.8.2012 To.WA.No.177 OF 2020 5
Circle Inspecior of Police Eravipuram Police Station Sir, Sub:Complaint regarding trespass in the property in possession of the Bank- Reg A Residential property within your jurisdictional limits, which is morefully described in the schedule here below was mortgaged by our borrowers. I N Rajan and Girija Kumari, in the loan taken by them- from our Branch. As the A/C became NPA, SARFAESI action was initiated against the said property which was secured to the loan.
The Hon'ble CJM Court, Kollam in CMP 8308/2011
had appointed Advocate Commissioner and
ordered to take possession of the scheduled property. In pursuance of the order of Hon'ble CJM, the Advocate Commissioner on 10.05.2012 had taken possession of the schedule property with the assistance of Eravipuram Police Station. Then he had handed over the possession to the Authorised Officer of the Bank on the same day, and the matter was reported back to Hon'ble CJM,Kollam.
Thus from 10.05.2012, the property is in the legal possession of the Bank. Now on inspection, it is noticed that the neighbours to the schedule property, one Kamalamma, her son Pramod Kumar. V and other family members had trespassed to the building which is in the legal possession of the Bank by breaking open the back door. It is also learnt that V.Pramod Kumar is a Police Constable.
We request you to investigate the mater and book the culprits for trespassing into the property which is in the possession of the Bank, and for causing damage to the property. Moreover, the above cited actions of the trespassers amount to an offence punishable under S.29 of the Securitisation und Reconstrucrions of Financial Assets and Enforcement of Security Interest Act. 2002. We also request you to take steps to handover actual possession to the Bank after evicting the trespassers.
Schedule of property Land measuring 4.10Ares and building and all other improvements therein situated under Re.Sy.No.331/21 in block no:24, Vadakkevila Village, Kollam Taluk, Kollam District, owned by Rajan and Girija Kumari which is bounded on the north by property of Kamalamma, South by properties of Assura Beevi, east. by property of Manzoor and west by road, more particularly described in schedule to Sale Deed 3441/2008 of SRO, Eravipuram, Kollam.WA.No.177 OF 2020 6
Yours faithfully Sd/-
Chief Manager Ext.P7 complaint dated 10.8.2012 SOUTH INDIAN Bank CIN No L6519IKL1929PLC001017 REF No:TVM:RO-REC:GEN:JV:10:19-20 27-05-2019 To Çircle Inspector of Police Eravipuram Police Station Sir, Sub: Complaint regarding trespass to the property taken under the Possession of the bank as per the provisions of SARFAESI Act, 2002, Ref: Banks complaint bearing No.KLM/GEN/105/12-13 dated 10.08.2012
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Our Kollam Main branch at Jerome Nagar had extended a housing Loan in the account of of Mr.l N Rajan and Mrs Girija Kumari which was secured by the mortgage of the property mentioned in the schedule of the complaint. The account was classified as Non-Performing Asset(NPA) as per RBI guidelines and Bank had initiated proceedings as per the provisions of Securitization and Reconstruction of Financial Asset and Enforcement of Security Interest Act, 2002 ( hereinafter referred as SARFAESI Act,2002) The Hon'ble CJM Court Kollam in CMP No.8308/2011 had appointed Advocate Commissioner to take possession of the scheduled property with the assistance of Eravipuram police Station.
In pursuance of the said order, Advocate Commissioner had possession of the property (Land admeasuring 4.10 Ares with residential building and all other improvements therein situated under Re Survey no 331/21 in block no.24 Vakakkvilla village, Kollam taluk, Kollan) on 10.05.2012 and handed over the possession to Authorised Officer, who is authorized to initiate proceedings under the provisions SARFAESI Act,2002. Thereafter the Advocate Commissioner had reported the same to CJM Kollam.
Being so when the property was in the legal possession of the bank, the neighbours to the scheduled property i.e Mrs.Kamalamma, her son Mr. Pramod Kumar V who is a police officer and other family members WA.No.177 OF 2020 7 had trespassed into the building by breaking open the back door. In the light of the said event bank had made a complaint before the Circle Inspector of Police, Eravipuram Police Station to investigate the matter and book the culprits for trespassing into the property which was in the possession of the bank and also for causing damage to the property. Further the said offence is punishable under sec.29 of the SARFAESI Act. Hence it was requested to handover the actual possession to the bank evicting the trespassers. However, there has been rio substantive action on the same till date.
In this context, your attention is also invited to the fact that the Debt Recovery Recovery Tribunal has dismissed S.A.No.210/2013 filed by Mrs.Kamalamma and her son Mr.Promod Kumar V upholding the bank's charge over the scheduled property. Copy of final order of DRT, Ernakulam is enclosed herewith for reference. Therefore, it is clear that the said trespassers viz. the aforesaid Mrs.Kamalamma and her son Mr.Pramod Kumar.
In the light of the above, we once again request you to investigate the matter and book the culprits (the aforesaid Mrs.Kamalamma and her son Mr. Pramod Kumar V) for trespassing into the property which was in the possession of the bank and 'also for causing damage to the property. The said act of the trespassers are also punishable under Sec.29 of SARFAESI Act, 2002. We further requisite you to take steps to immediately handover the actual possession to the bank after evicting the trespassers (Mrs.Kamalamma and her son Mr.Pramod Kumar V, and their agents/hirelings).
Yours faithfully, Sd/-
CHIEF MANAGER Encl: As above "
5. Being aggrieved by the above said complaints remaining unanswered, Bank has chosen to file W.P.(C) No.19890/2019 seeking a writ of mandamus directing the 1 st respondent to take action on WA.No.177 OF 2020 8 Exts.P3 and P7 and restore possession of the property (10 cents in Re.Sy No.331/21, Vadakkevila Village, Kollam Taluk, Kollam District with buildings therein) to the petitioner therein.
6. Though the appellants have contended that, if the complaints addressed to the Circle Inspector of Police, Eravipuram Police Station are not considered, the remedy available to the complainant is to move the higher authorities and thereafter a private complaint to the court of competent criminal jurisdiction and writ is not the appropriate remedy, to be precise that, when an alternative remedy is available, writ cannot be granted as a matter of right. We are not in agreement with this submission for the reason that, going through the materials on record, we find that, the appellants have trespassed into the property and taking note of the facts and circumstances of the case from the inception, writ court appears to have exercised its extraordinary jurisdiction under Article 226 of the Constitution of India. Writ court has also observed that, even if an alternative remedy is available to the appellants, issuance of appropriate writ need not be refused.
7. Having regard to the attempt made by the appellants to claim right over property by filing an application before the Debt WA.No.177 OF 2020 9 Recovery Tribunal, failure to obtain appropriate orders in writ petition No.16149/2012 dated 8th October, 2012, trespass into the subject property, we are of the view that, appellants are not entitled to any equitable remedy under Article 226 of the Constitution of India. Per contra, Bank is permitted to take appropriate action.
In the result, instant writ appeal is dismissed.
Sd/-
S.MANIKUMAR CHIEF JUSTICE Sd/-
SHAJI P.CHALY
smv JUDGE