Kerala High Court
K.K.Yusuff vs Union Bank Of India on 5 July, 2008
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON
FRIDAY, THE 13TH DAY OF JULY 2012/22ND ASHADHA 1934
WP(C).No. 11232 of 2012 (D)
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CMP.549/2012 of CHIEF JUDL.MAGISTRATE, ERNAKULAM
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PETITIONER(S):
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K.K.YUSUFF, PROPRIETOR, 'IN STYLE', TOLL JUNCTION
EDAPPALLY P.O., PIN-682024.
BY ADV. SRI.SHAJI P.CHALY
RESPONDENT(S):
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1. UNION BANK OF INDIA,
ERNAKULAM MAIN BRANCH, UNION BANK BHAVAN,
M.G.ROAD, ERNAKULAM, KOCHI-682 035
REPRESENTED BY ITS ASSISTANT GENERAL MANAGER
AND AUTHORISED OFFICER.
2. SAJU KADAVIL (K.A.SAJU)
S/O.ABDUL KHADER, POOVATHUMMOOTTIL, EDAPPALLY TOLL
PUTHUPPALLIPRAM KARA, THRIKKAKARA NORTH VILLAGE
PIN-682024.
BY SRI.A.S.P.KURUP, SC, UBI
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
13-07-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
tss
W.P.(C) NO.11232/2012
APPENDIX
PETITIONER(S) EXHIBITS
P1:- LEASE AGREEMENT DT.10-9-2004 BETWEEN THE PETITIONER AND THE SECOND
RESPONDENT.
P2:- COPY OF THE CERTIFICATE OF REGISTRATION DATED 5-7-2008 ISSUED BY THE
COMMERCIAL TAX OFFICER, KVAT CIRCLE-I, KALAMASSERY.
P3:- COPY OF THE MAHAZAR DT.11-11-2011 PREPARED BY THE KALAMASSERY POLICE
IN CRIME NO.2150/11 RELATING TO THE SAID FIRE ACCIDENT.
P4:-- COPY OF THE RECEIPT DATED 19-2-2010 ISSUED BY KALAMASSERY
MUNICIPALITY FOR PAYMENT OF TRADE LICENSE FEE FOR THE PERIOD 2010-11.
P5:- COPY OF THE RECEIPT DATED 18-3-2011 ISSUED BY KALAMASSERY MUNICIPALITY
FOR PAYMENT OF TRADE LICENSE FEE FOR THE PERIOD 2011-12.
P6:- COPY OF THE RECEIPT DATED 16-3-2012 ISSUED BY KALAMASSERY
MUNICIPALITY FOR PAYMENT OF TRADE LICENSE FEE FOR THE PERIOD 2012-13.
P7:- COPY OF THE RECEIPT DATED 2-9-2011 ISSUED BY THE KALAMASSERY
MUNICIPALITY.
P8:- COPY OF THE COMMISSION ORDER DATED 24-3-2012 IN CMP 549/2012 OF THE CJM
COURT.
P9:- TRUE COPY OF THE REQUEST DATED 9-5-2012 MADE BY THE PETITIONER TO THE
ADVOCATE COMMISSIONER.
RESPONDENTS' EXHIBITS
NIL
//TRUE COPY//
P.S. TO JUDGE
tss
P.R. RAMACHANDRA MENON J.
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W.P(C) No. 11232 of 2012
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Dated, this the 13th day of July, 2012
JUDGMENT
The rights and interest of a tenant, who is occupying the premise concerned, which stands already subjected to mortgage, creating security interest in favour of the Bank and the rights and liberties of the Bank to proceed with sale of the property, because of the failure on the part of the landlord/borrower form the subject matter of challenge in this writ petition.
2. The case as narrated in the writ petition shows that the second respondent herein had availed a loan from the first respondent Bank based on the security interest created over property and the building situated therein, which stands let out to the petitioner as per Ext. P1 lease agreement dated 10.09.2004. The case of the petitioner is that, mortgage was created in favour of the Bank only subsequently and as such, the petitioner cannot be simply evicted without any regard to W.P.(C) No. 11232 of 2012 : 2 : the rights and liberties provided under the Kerala Building (Lease and Rent Control) Act, 1965; more so in view of the law declared by a Full Bench of this Court reported in Pushpangadan Vs. Federal Bank Limited (2011 (4) KLT
134). It is because of the coercive steps sought to be pursued by the Bank by filing a petition under Section 14 before the concerned Chief Judicial Magistrate's Court, leading to Ext. P8 order dated 24.03.2012, ordering forceful eviction, that the petitioner is compelled to approach this Court by filing the present writ petition, wherein interim order of stay was granted on 11.05.2012, which was subsequently extended on 15.05.2012.
3. Heard the learned counsel for the respondent Bank as well, who conceded the position with regard to the tenancy of the petitioner over the premises and sought for permission to proceed with steps for taking symbolic possession and to complete further steps, retaining the petitioner in the premises.
W.P.(C) No. 11232 of 2012 : 3 :
4. In the said circumstances, this Court does not find it necessary to relegate the petitioner to approach the Tribunal to establish the rights of the petitioner with regard to the claim for tenancy. The Writ Petition is disposed of, permitting the respondent Bank to proceed with further steps, retaining the petitioner in the premises for the time being and it will without prejudice to the rights and liberties of the parties concerned to pursue appropriate remedy in accordance with law. It will be open for the petitioner to participate in the sale, if any The Writ Petition is disposed of.
sd/-
P. R. RAMACHANDRA MENON, (JUDGE) kmd