Kerala High Court
A.A.Kumaran vs Superintendent Of Police on 18 May, 2022
Author: Bechu Kurian Thomas
Bench: Bechu Kurian Thomas
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS
WEDNESDAY, THE 18TH DAY OF MAY 2022 / 28TH VAISAKHA, 1944
WP(C) NO. 5875 OF 2022
PETITIONER:
A.A.KUMARAN
AGED 65 YEARS, S/O AYYAPPAN,
ATTUPURATHU HOUSE,
PERUMBULLISSERY, CHEWOOR,
THRISSUR DISTRICT-680561.
BY ADV MAHESH V.MENON
RESPONDENTS:
1 SUPERINTENDENT OF POLICE
OFFICE OF SUPERINTENDENT OF POLICE,
THRISSUR-680022.
2 THE SUB INSPECTOR OF POLICE
CHERPPU POLICE STATION,
THRISSUR RURAL, THRIPRAYAR ROAD,
THRISSUR-680561.
3 STATE BANK OF INDIA,
URAKAM BRANCH,
THRISSUR, PIN-680512,
REPRESENTED BY ITS AUTHORIZED OFFICER.
4 PRAKASAN K V.
AGED 55 YEARS, S/O VASU,
KADAMBUZHA HOUSE,
VALLACHIRA P O,
THRISSUR DISTRICT, PIN-680512.
5 BINDU PRAKASAN.
AGED 46 YEARS, W/O PRAKASAN,
KADAMBUZHA HOUSE,
VALLACHIRA P O,
W.P.(C) No.5875/22 -:2:-
THRISSUR DISTRICT, PIN-680512.
BY ADVS.
SMT. THUSHARA JAMES, SR. GOVT. PLEADER
SRI.S.EASWARAN
SRI.P.CHANDRASEKHAR
SRI.C.S.ULLAS
SMT.MANJARI G.B.
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 08.04.2022, THE COURT ON 18.05.2022 DELIVERED
THE FOLLOWING:
W.P.(C) No.5875/22 -:3:-
"C.R."
BECHU KURIAN THOMAS, J.
--------------------------------
W.P.(C) No.5875 of 2022
--------------------------------
Dated this the 18th day of May, 2022
JUDGMENT
Petitioner is the auction purchaser of a property over which security interest was created for a loan availed by respondents 4 and 5 from the third respondent. Consequent to default in repayment of the loan, proceedings for the enforcement of security interest were initiated. Possession of the secured asset was taken over by the Advocate Commissioner on 13.03.2018 and handed over to the third respondent.
2. Thereafter, in compliance with the statutory provisions, sale of the secured asset was held on 28.10.2021, and petitioner became the successful bidder, having bid the property for Rs.43,10,000/-. Subsequently, a sale certificate was executed and registered as document No.199/1/2022 before the Sub Registry Office, Cherppu dated 19.01.2022. The sale certificate W.P.(C) No.5875/22 -:4:- was registered after physical possession of the secured asset was handed over to the petitioner. Petitioner also effected transfer of registry of the property and remitted the basic tax.
3. Petitioner alleges that on the morning of 22.1.2022, respondents 4 and 5, who were the borrowers, forcibly trespassed into the property, broke open the doors, threatened the inmates and took forcible possession of the property. The criminal acts were reported to the police, and a crime was registered as FIR No.73/2022 of the Cherppu Police Station. A complaint was also filed seeking protection for the life and property of the petitioner. According to the petitioner, after the bank took over physical possession of the property and handed over the same, respondents 4 and 5 could not have trespassed into the property and forcibly taken possession. The action of respondents 4 and 5 questions the rule of law, pleaded the Petitioner. It is averred that after the borrowers were physically dispossessed, in accordance with the statutory provisions of Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (for short the Act), the said borrowers cannot re-enter the property and claim protection from dispossession, relying upon other legal W.P.(C) No.5875/22 -:5:- principles. Thus, the petitioner seeks a direction to the police to take such steps to remove respondents 4 and 5 from the property and for grant of protection for his life and property. A further relief is also sought to direct the third respondent bank to invoke the provisions of section 14 of the Act to deliver possession of the secured asset sold to the petitioner.
4. A counter affidavit has been filed by the third respondent bank stating that the bank's obligation ended by handing over physical possession of the property to the petitioner immediately before the registration of the sale. It was pointed out that though S.A. No.175 of 2018 filed by the borrower is pending before the Debts Recovery Tribunal, the sale of the secured asset, which took place on 28.10.2021 remains unchallenged. According to the bank, C.M.P. No.4954 of 2016 was filed by them before the Chief Judicial Magistrate, Thrissur, for initiating proceedings under section 14 of the Act and thereafter, C.M.P. No.1280 of 2018 was filed, seeking permission to break open the door of the scheduled property. By order dated 28.02.2018, the Chief Judicial Magistrate permitted the Advocate Commissioner to break open the lock and take possession of the building. Based on the aforesaid order, the Advocate W.P.(C) No.5875/22 -:6:- Commissioner broke open the lock, took possession of the property and the building and filed a report before the court, which was recorded in the order dated 15.03.2018.
5. Consequent to taking possession of the secured asset, a security guard was also appointed. After the auction and registration of the sale certificate, the Bank terminated the security arrangement and withdrew the security guard on 21.01.2022. However, immediately after the security guard was withdrawn, respondents 4 and 5 trespassed into the property and occupied the secured asset illegally. The third respondent contended that this Court had intervened through Article 226 of the Constitution of India on earlier occasions to deliver secured assets to secured creditors and relied upon the judgment reported in Federal Bank Ltd. v. Thahira (2017 (1) KLT 1038).
6. A detailed counter affidavit has been filed by respondents 4 and 5 questioning the invocation of the public law remedy to agitate a private grievance if at all any. According to the said respondents, as a trustee of the property, the bank was bound to get a maximum price and since the bank invoked the provisions of section 14 of the Act, without following the procedure, the physical possession of the property was not W.P.(C) No.5875/22 -:7:- legally available with the bank at the time of sale and on the other hand the legal possession always continued with the borrowers. Respondents 4 and 5 further pleaded that the police cannot be directed to deprive legal possession of the borrowers and further questioned the order of the learned Magistrate to break open the residential building and to take physical possession before the Debts Recovery Tribunal. It was also pleaded that the entire transaction of sale, sale confirmation and registration were all illegal and in contravention of the Act and that they were the result of a fraudulent sale having no legal validity. It was further pleaded that the sale was already challenged before the Tribunal by filing an amendment petition in S.A. No.175 of 2018. On the above basis, respondents 4 and 5 sought dismissal of the writ petition.
7. Additional counter-affidavits were also filed by respondents 4 and 5 stating that they have not ceased to occupy the residential building since the word possession would include both actual as well as constructive and that the possession taken by the Advocate Commissioner was only a symbolic possession, which is a question of fact to be decided in evidence before the Tribunal.
W.P.(C) No.5875/22 -:8:-
8. An additional counter affidavit was filed by the third respondent Bank, pointing out that the pleading of respondents 4 and 5 that they had never been dispossessed is contrary to their own affidavit filed in S.A. No.175 of 2018. The third respondent also averred that the photographs showed a seal having been affixed on the door of the building in the secured asset, clearly indicating the taking of physical possession of the secured asset.
9. I have heard Sri. Mahesh V. Menon learned counsel for the petitioner. Smt. Thushara James, learned Senior Government Pleader argued on behalf of respondents 1 and 2, while Sri.S.Easwaran argued on behalf of the Bank.
Sri.P.Chandrasekhar, addressed the Court on behalf of respondents 4 and 5.
10. Sri. Mahesh V. Menon contended that the auction purchaser had been kept out of the property by the prior owners after taking the law into their own hands, contrary to the mandate of the Constitution and hence the intervention of this Court is necessary to restore possession in accordance with the provisions.
11. Sri.S.Easwaran learned Standing Counsel for the bank submitted that respondents 4 and 5 have acted against the W.P.(C) No.5875/22 -:9:- orders of the learned Chief Judicial Magistrate and such conduct cannot under any circumstances be permitted, lest the rule of law be affected. He relied upon the decision in Kelukutty P.M. and Others v. Young Men's Christian Association and Another (2016 (1) KHC 853) in support of his contentions.
12. Sri.P.Chandrasekhar, on the other hand, contended that the remedy of the petitioner, if any, is to move the civil court and not to obtain orders from this Court to use police force to remove the actual occupants of a building. He referred to the decisions in Subin Mohammed v. Union of India (2016 (1) KLT 340), K.C.Thomas v. Supt. of Police (1980 KLT 151), Suseela v. State of Kerala (2008 (4) KLT 561), Jnanadas v. Cicilet Balaraj (2000 (2) KLJ 948), Ajayakumar v. State of Kerala (2008 (1) KLT 901), Shankaranarayana Bhat K.M. v. Asst. Commissioner H & C.R.(Admn.) Department (2008 (4) KHC 624), John v. State of Kerala (2008 (1) KLT 462), Kewal Chand Mimani (D) by LRS v. S.K.Sen and Others (2001 (6) SCC 512), and Rajendra K. Bhutta v. Maharashtra Housing and Area Development Authority and Another [(2020) 13 SCC 208] and contended that the remedy of the petitioner is not under Article 226 of the Constitution.
W.P.(C) No.5875/22 -:10:-
13. On a consideration of the arguments raised by the respective counsel, the following questions arise for adjudication:
(i) Whether the third respondent bank had physically dispossessed respondents 4 and 5 from the secured asset prior to sale?
(ii) Whether the public law remedy under Article 226 of the Constitution of India is available to the petitioner?
14. The above two questions are dealt with as under.
(i) Whether the third respondent bank had physically dispossessed respondents 4 and 5 from the secured asset prior to sale?
15. Though the learned counsel for the borrowers vehemently contended that physical possession of the property was never taken over by the bank or by the Advocate Commissioner, the documentary evidence produced by the petitioner as well as the third respondent shows the contrary. As per the order dated 28.02.2018, produced as Ext.R3(d), the Chief Judicial Magistrate, Thrissur, directed the Advocate Commissioner to break open the door of the scheduled property and to take possession of the building. Thereafter, the Advocate Commissioner, in his report dated 15.03.2018 submitted to the Magistrate, stated as follows:
W.P.(C) No.5875/22 -:11:-
"The possession of the schedule property has been taken and handed over to the authorized officer of the petitioner bank SBI Urakom Branch on 13/03/2018 by the Advocate Commissioner. The inventory is taken as well.
The Commission warrant, along with the report and inventory is submitted before the Hon'ble court. Dated this the 15th day of March, 2018"
16. Based on the above-said report, the Chief Judicial Magistrate issued an order on 15.03.2018 observing that "Report is filed stating that possession is taken. Hence this Crl.M.P. is closed." Apart from the above, a notice was also issued by the third respondent stating that possession of the property has been taken over by the said respondent on 13.03.2018. An appreciation of the aforementioned documents produced by the petitioner as well as the third respondent, most of which are records of the Advocate Commissioner filed before the Magistrate, I have no hesitation in holding that the physical possession of the property was taken over by the bank on 13.03.2018. No documents have been produced by respondents 4 and 5 to show that possession was ever returned to the said persons either by the bank or by orders of any court of law.
17. Further, the fourth respondent himself had, as evident W.P.(C) No.5875/22 -:12:- from Ext.R3(h), filed an affidavit before the Debts Recovery Tribunal in S.A. No.175 of 2018 stating as follows:
"The 1st defendant had approached the Chief Judicial Magistrate, Thrissur and filed a petition under section 14 of the Securitisation & Reconstruction of Financial Assets & Enforcement of Security Interest Act, 2002, to direct the Commissioner to take possession of the scheduled properties. Thereupon, after serving the Annexure-VII notice for dispossession, the respondents along with the Advocate Commissioner and Police on 13-3-2018 at 8.30 am took possession of the scheduled property and Building and petitioners were ousted even without preparing an inventory and all household articles, utensils, furniture and Gold ornaments, Household electronic items, Fridge, A/C's, T.V. and other electronic items, Tools and machinery, Gas cylinder and kitchen appliances, dresses, Livestock, domestic animals were not allowed to taken (sic.) any above mentioned items."
18. The above sworn affidavit, elucidates that possession of the property was taken over from respondents 4 and 5 on 13.03.2018. In view of the above affidavit and the admission therein, the said respondents are estopped from contending to the contra. Thus, I hold that from 13.03.2018 onwards possession of the property was with the third respondent bank and the said vesting in accordance with section 13(4) and section 14 of the Act cannot be interrupted or meddled with by respondents 4 and 5, unless otherwise in accordance with law.
(ii) Whether the public law remedy under Article 226 of the Constitution of India is available to the petitioner? W.P.(C) No.5875/22 -:13:-
19. After taking over possession of the property, a sale notice was duly published and by virtue of section 13(8) of the Act, the borrowers had lost even their right to redeem the property on publication of the notice. It is thereafter that the sale was conducted, which was bid by the petitioner, later confirmed in his name and the sale deed registered. Consequent to the registration of the sale deed, the third respondent has asserted that they had handed over possession of the property to the petitioner. No contra evidence is available to disprove the said assertions and by virtue of the sale certificate produced as Ext.P3, the petitioner's absolute ownership of the property is beyond dispute.
20. Thus, the secured asset having been taken possession by recourse to the provisions of section 14 of the Act, the sanctity of the order of the learned Magistrate is required to be ensured. As a sentinel on the qui vive, this Court can, in appropriate cases direct the police force of the State to use its force to restore possession of the property which has wrongly been deprived from the true owner. The need to exercise the power of this Court to act as a guardian of law is amplified in this case due to the facts placed on record. When the indisputable W.P.(C) No.5875/22 -:14:- records produced, explicitly show the absence of any bonafide or real disputed questions of fact, this Court must step in to aid the enforcement of rule of law.
21. Further, the present case reveals an instance where a person has taken the law into his hands by force and thereafter seeks the benefit of legal principles. If such actions are permitted to be perpetrated, rule of law will suffer immeasurably. The purport of the Act is to divest the owner of a property in the enforcement of security interest and initiate measures to wipe off the liability by resorting to measures including sale. If measures taken for dispossession and consequent sale are intermeddled by persons like respondents 4 and 5, it would result in a mockery of the rule of law. The will of the people reflected through the legislation will be seriously infringed, if the Court remains a mute spectator.
22. In this context, the observations of this Court in the decision in Federal Bank Ltd. v. Thahira (2017 (1) KLT 1038) assumes relevance. In that case, the borrowers who were dispossesed by orders of the Magistrate, broke open the locks and forcibly repossessed the secured asset. In such circumstances, this Court observed as follows: W.P.(C) No.5875/22 -:15:-
"7. Having heard the learned counsel on either side and having perused the records, I am of the view that this is a typical case by which the rule of law has been completely negated by the action of respondents 1 and 2. When a statutory right had been given to the petitioner Bank to take possession of the premises and if necessary, with the assistance by the Chief Judicial Magistrate in terms of S.14 of the Act, when possession is taken through the said process, possession has to remain with the Bank itself, unless there is any change in circumstances by which the Bank permits respondents 1 and 2 to retain possession or possession is given back. No such eventuality had happened in the case. This is a clear case that respondents 1 and 2 had trespassed into the property, which is taken possession by invoking a legally accepted method. In the said circumstances, when the matter has been brought to the notice of the Chief Judicial Magistrate, the Magistrate ought to have taken further steps pursuant to S.14 itself. Such an inaction has led to situation of travesty of justice. If such illegalities are permitted to continue, it will amount to giving a premium to high handedness. This Court therefore has to ensure that such violations are rectified, and rule of law prevails. ..................
8. Coming to the facts of the case, I am of the view that though the Magistrate had not exercised powers, it shall always be open for this Court to ensure that the illegality committed by respondents 1 and 2 are rectified. I am satisfied that the possession was taken by the Bank, especially, in the light of Exts. P5 and P6. In the said circumstances, respondents 1 and 2 have no right or power to trespass over the property. Accordingly, there will be a direction to respondents 3 and 4 to forcefully remove respondents 1 and 2 or any other person from the building aforesaid and ensure that the possession is restored to the petitioner Bank. This shall be done within a period 15 days W.P.(C) No.5875/22 -:16:- from the date of receipt of a copy of this judgment."
23. In the instant case also, the borrowers had broken the locks and forcibly repossessed the secured asset which had, by then become the property of the petitioner. The dispossession of respondents 4 and 5 under section 14 of the Act cannot be interfered with or infringed upon by any person after taking law into their own hands. When such illegal actions are carried out, Rule of law requires this Court to issue directions to the police force of the State to forcefully remove such trespassers.
24. The various decisions cited by learned counsel for respondents 4 and 5 are, according to me, wholly unrelated to the present dispute and they do not apply to the facts arising in the instant case. The decision in Rajendra K. Bhutta v. Maharashtra Housing and Area Development Authority and Another [(2020) 13 SCC 208] arose under the Insolvency and Bankruptcy Code 2016 and the discussions on ownership, possession and occupation have no bearing on the present dispute.
25. None of the decisions relied upon by the learned Counsel for respondents 4 and 5 relates to situations where the W.P.(C) No.5875/22 -:17:- property was taken over under the Act and subjected to a sale. In the decisions cited by the learned counsel for respondents Nos.4 and 5, the disputes reflected some claim of right in the person either as a tenant or as an owner or as one claiming possessory title. In those cases, there were semblences of civil disputes either questioning the title to the property or questioning possession of the property. In the instant case, since respondents Nos.4 and 5 were dispossessed through the force of the Statute, without leaving any room for confusion and thereafter the property was subjected to a sale and consequent registration, vesting title absolutely upon the petitioner, by virtue of the operation of law, there can be no claim of a property dispute relating to title or possession.
26. The attempt on the part of respondents 4 and 5 to create a dispute on possession and draw a parallel with other civil disputes is, according to me, fanciful and highly subversive of the rule of law. Unlike in other cases of property disputes relating to possession, in the present case, dispossession of the petitioner is evidenced by the orders of the court of law, which has sanctity and cannot be disputed by anyone much less respondents 4 and 5. In Ext.R3(f) and R3(g) and as held by me W.P.(C) No.5875/22 -:18:- as answer to the first question posed in this judgment, physical dispossession of the property from respondents 4 and 5 is beyond a shadow of doubt. Therefore, recourse to public law remedy to ensure sanctity for court orders and actions initiated under the Securitisation Act cannot be faulted and the same is available to the petitioner.
27. In view of the above deliberations, I hold that petitioner is entitled to the reliefs claimed for in the writ petition. Therefore, there will be a direction to respondents 1 and 2 to take immediate steps to remove respondents 4 and 5 from the property scheduled in Ext.P3 sale and if necessary by use of force and return possession of the said property to the petitioner apart from granting police protection to the life and property of the petitioner. The needful shall be done within 15 days from the date of receipt of a copy of this judgment.
The writ petition is allowed as above and in the nature of the case, with costs of Rs.25,000/- to be paid by respondents 4 and 5 to the petitioner.
Sd/-
BECHU KURIAN THOMAS JUDGE W.P.(C) No.5875/22 -:19:- vps APPENDIX OF WP(C) 5875/2022 PETITIONER'S/S' EXHIBITS EXHIBIT P1 A TRUE COPY OF THE REPORT OF ADVOCATE COMMISSIONER DATED 15.03.2018 IN CRL.MP NO.4954/2016 CHIEF JUDICIAL MAGISTRATE COURT, THRISSUR EXHIBIT P2 A TRUE COPY OF PUBLIC SALE NOTICE DATED 05.10.2021 ISSUED BY THE 3RD RESPONDENT BANK.
EXHIBIT P3 A TRUE COPY OF THE DEED OF SALE
CERTIFICATE NO.199/1/2022 REGISTERED
BEFORE THE SRO, CHERPU BY THE
AUTHORIZED OFFICER OF THE 3RD
RESPONDENT BANK DATED 19.01.2022 AND
REGISTERED ON 21.01.2022.
EXHIBIT P4 A TRUE COPY OF THE BASIC TAX RECEIPT
DATED 08.02.2022 ISSUED BY THE VILLAGE
OFFICER, VALLACHIRA FOR THE YEAR 2021-
2022.
EXHIBIT P5 A TRUE COPY OF THE POSSESSION
CERTIFICATE DATED 09.02.2022 ISSUED BY
VILLAGE OFFICER VALLACHIRA.
EXHIBIT P6 A TRUE COPY OF THE FIR IN CRIME
NO.73/2022 OF THE CHERPPU POLICE
STATION DATED 22.01.2022.
EXHIBIT P7 A TRUE COPY OF THE COMPLAINT DATED
08.02.2022 LODGED BEFORE THE 1ST
RESPONDENT BY THE PETITIONER.
RESPONDENT EXHIBITS
EXHIBIT R3(a) TRUE COPY OF THE WRITTEN STATEMENT
FILED BY THE RESPONDENT BANK IN S.A
W.P.(C) No.5875/22 -:20:-
175/2018 ALONG WITH EXHIBITS
EXHIBIT R3(b) TRUE COPY OF THE EXTRACT OF A DIARY
PROCEEDINGS DATED 10/01/2018 OBTAINED
FROM E COURTS WEBSITE IN
CRL.M.P4954/2016
EXHIBIT R3(C) TRUE COPY OF THE EXTRACT OF A DIARY
PROCEEDINGS DATED 30/01/2018 OBTAINED
FROM E COURTS WEBSITE IN CRL.M.P
4954/2016
EXHIBIT R3(d) TRUE COPY OF THE EXTRACT OF THE ORDER
DATED 28/02/2018 IN CMP NO. 1280/2018
IN C.M.P 4954/2016
EXHIBIT R3(e) TRUE COPY OF THE ORDER DATED 15/03/2018
IN C.M.P 4954/2016 ON THE FILES OF THE
CJM COURT, THRISSUR
EXHIBIT R3(f) TRUE COPY OF THE AGREEMENT DATED
17/04/2021 ENTERED INTO BETWEEN THE
SECURED CREDITOR AND M/S. PRIVATE EYE
EXHIBIT R3(g) TRUE COPY OF THE LETTER DATED
03/02/2022 ISSUED BY M/S. PRIVATE EYEEX
EXHIBIT R3(h) TRUE COPY OF THE PETITION FILED BEFORE
THE DRT-II ERNAKULAM IA NO.3599/2018 IN
SA 175 OF 2018.
EXHIBIT R3(i) TRUE COPY OF THE PHOTOGRAPHS SHOWING
AFFIXURE OF POSSESSION NOTICE.
EXHIBIT R4(a) TRUE COPY OF SA 175/2018 IN THE FILE OF
DRT-2 ERNAKULAM
EXHIBIT R4(b) TRUE COPY OF THE IA 1398/2021 IN SA
175/2018 IN THE FILE OF DRT-2 ERNAKULAM
EXHIBIT R4(c) TRUE COPY OF IA 1399/2021 FOR STAY IN
SA 175/2018 IN THE FILE OF DRT-2
ERNAKULAM
EXHIBIT R4(d) TRUE COPY OF IA 1497/2021 IN SA
175/2018 INSPECTION UNDER BANKER'S BOOK
EVIDENCE ACT IN THE FILE OF DRT-2
W.P.(C) No.5875/22 -:21:-
ERNAKULAM
EXHIBIT R4(e) TRUE COPY OF POSSESSION CERTIFICATE
DATED 30.6.2021 ISSUED BY THE VILLAGE
OFFICER VALLACHIRA
EXHIBIT R4(f) TRUE COPY OF THE PETITION FOR AMENDMENT
DATED 18.3.2022 FILED IN SA 175/2018 IN
THE FILE OF DRT-2 ERNAKULAM
EXHIBIT R4(g) TRUE COPY OF THE PETITION FOR
IMPLEADING DATED 18.3.2022 FILED IN SA
175/2018 IN THE FILE OF DRT-2 ERNAKULAM
EXHIBIT R4(h) TRUE COPY OF THE ORDER DATED 21.10.2010
IN WP NO.14820/2008 BY THE HONOURABLE
KARNATAKA HIGH COURT
EXHIBIT R4(i) TRUE COPY OF THE ORDER OF THE
HONOURABLE SUPREME COURT DATED
18.1.2016 IN SLP 633/2010
EXHIBIT R4(J) TRUE COPY OF THE CMP 4954/2016 IN THE
FILE OF THE CHIEF JUDICIAL MAGISTRATE
COURT, THRISSUR