Kerala High Court
Shajilal vs Union Bank Of India on 25 September, 2009
Author: S.S.Satheesachandran
Bench: S.S.Satheesachandran
IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 26779 of 2009(O)
1. SHAJILAL,AGED 50 YEARS,
... Petitioner
2. CHAKARAPANI K, AGED 70 YEARS,
3. SANTHAMMA, AGED 60 YEARS,
4. K. KRISHNASWAMI, AGED 50 YEARS,
5. K.P KARUNAKARAN NAIR, S/O. PADMANABHA
6. CHANDRIKA RAJAPPAN,
7. S. SANTHAMMA, W/O. C.K. RAJENDRAN,
Vs
1. UNION BANK OF INDIA, REPRESENTED
... Respondent
2. MUHAMMED BASHEER, AGED 41 YEARS, S/O
3. R. SUDHAKARAN, S/O. MALLIA, CHARTERED
For Petitioner :SMT.C.G.BINDU
For Respondent : No Appearance
The Hon'ble MR. Justice S.S.SATHEESACHANDRAN
Dated :25/09/2009
O R D E R
S.S.SATHEESACHANDRAN, J.
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W.P.(C).NO.26779 OF 2009 (O)
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Dated this the 25th day of September, 2009
J U D G M E N T
The writ petition is filed seeking mainly the following reliefs:
i. to issue a writ in the nature of certiorari or other appropriate writ be issued to call for and quash Ext.P10 common order of the Additional Munsiff's Court, Alappuzha and also Ext.P11 judgment of the District Court, Alappuzha.
ii. to issue a writ of mandamus or other appropriate writ, direction or order, directing the respondents not to evict the petitioners from the premises in their immediate possession at the time of implementing Ext.P6.
iii. to issue a writ of mandamus or other appropriate writ, direction or order, directing the respondents not to evict the petitioners otherwise than under due procedure established by law;
2. Petitioners claimed the status of statutory tenants over rooms in a building, which is admittedly mortgaged in WPC.26779/09 2 favour of the 1st respondent, a public sector bank. Even long before the mortgage was created in favour of the bank, the petitioners are in occupation of the rooms in the building mortgaged, is their case. Since the borrower/mortgagor defaulted the loan availed on the security of the mortgage, the 1st respondent bank initiated proceedings against the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002. At that stage, the petitioners instituted a suit O.S.No.807 of 2007 before the Munsiff Court, Alleppey, seeking a decree of perpetual prohibitory injunction to restrain the 1st respondent bank and also their landlord, the mortgagor from evicting them. Ext.P9 is the copy of that plaint. An application for interim injunction identical to the relief sought for in the suit was also applied for. The 2nd defendant in the suit moved another application contending that the suit is not maintainable in view of the bar of jurisdiction under the SARFAESI Act. Both the applications were heard together and the learned Munsiff found that the suit is barred under Section 34 of the SARFESI Act, and holding so, the interim ex parte injunction order WPC.26779/09 3 granted earlier was vacated and the suit was dismissed as not maintainable. Ext.P10 is the copy of that order. Against the dismissal of the suit, petitioners preferred an appeal as A.S.No.37 of 2009 before the District Court Alleppey. The learned District Judge considered the maintainability of the appeal and finding that the suit filed by the petitioners was barred under Section 34 of the SARFAESI Act, concurred with the conclusion so formed by the learned Munsiff. However, the dismissal of the suit holding that it was not maintainable was found not correct, and so much so, in the appeal, the learned District Judge directed for return the plaint for presentation before the proper court having jurisdiction to entertain the suit. Ext.P11 is the copy of that judgment rendered by the learned District Judge. Propriety and correctness of that judgment is challenged in the writ petition raising a further challenge against Ext.P6 notice issued by the 1st respondent bank under Section 13 (4) of the SARFAESI Act, as well, invoking the extraordinary jurisdiction vested with this Court under Articles 226 and 227 of the Constitution of India.
WPC.26779/09 4
3. Notice was given to the 1st respondent bank. Notice to the other respondents were dispensed with. I heard the learned counsel for the petitioners and also that of the 1st respondent bank. From the submissions made and considering the facts and circumstances presented with reference to Exts.P10 and P11 orders and also Ext.P6 notice issued by the bank and other exhibits produced in the writ petition, I find, the judgment rendered by the learned District Judge in appeal directing return of the plaint for presentation before the proper court, has to be interfered with exercising the visitorial jurisdiction vested with this Court. When the suit itself was found barred under law and not entertainable as the jurisdiction of the court was ousted to examine the dispute canvassed in view of the bar under Section 34 of the SARFAESI Act there was no question of issuing an order or direction for returning of the plaint for production before the proper court. Where the jurisdiction of the civil court to entertain the suit is found to be barred under the provisions of a Statute the only course open is to pass an order rejecting the WPC.26779/09 5 plaint, but, not directing return of the plaint. So much so, to the extent the order in Ext.P11 order directing for return of the plaint is liable to be interfered with. Setting aside Ext.P11 order, I direct the learned District Judge to pass appropriate orders in the appeal taking note of the observations made above.
4. So far as the challenge against Ext.P6 notice issued by the first respondent bank is concerned, it is open to the petitioners to canvass the challenges thereof in appropriate proceedings as envisaged under law, if so advised. Where this court finds the suit filed by the plaintiffs is found to be barred under a Statute and to that extent the challenges against Ext.P10 and Ext.P11 cannot be interfered, it is not proper and appropriate for this Court to examine the correctness of Ext.P6 proceedings in this proceeding. As already indicated, it is open to the petitioners to canvass whatever challenges available against Ext.P6 notice in appropriate proceedings.
5. I direct the 1st respondent bank to keep in abeyance WPC.26779/09 6 further proceedings from Ext.P6 notice for a period of three weeks from the date of this judgment to provide a breathing time to the petitioners to take appropriate proceedings in appropriate forum, if so advised. The learned District Judge is directed to pass appropriate orders in the appeal in the light of the observations made above and in accordance with law, within a period of two weeks from the date of receipt of a copy of this judgment. Subject to the above directions, the writ petition is closed.
Handover a copy of the judgment to the counsel on both sides and send a copy of this judgment to the concerned District Court, Alleppey forthwith.
S.S.SATHEESACHANDRAN JUDGE prp