Kerala High Court
Shaji vs K.T.Chathukutty on 6 October, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE N.ANIL KUMAR
WEDNESDAY, THE 6TH DAY OF OCTOBER 2021/ 14TH ASWINA, 1943
RSA NO. 581 OF 2021
AGAINST JUDGMENT AND DECREE IN AS 24/2018 OF ADDITIONAL
DISTRICT COURT-III, KOZHIKODE DTD.31.1.2020 ARISING FROM THE
JUDGMENT AND DECREE IN O.S.No.365/2007 ON THE FILE OF THE
ADDITIONAL SUB COURT-I, KOZHIKODE DTD.27.10.2017
APPELLANTS/APPELLANTS/PLAINTIFFS:
1 SHAJI,
AGED 45 YEARS,
S/O.SREEDHARAN.
2 T.MANI,
AGED 52 YEARS,
S/O SREEDHARAN.
BOTH RESIDING AT THAZHATHAYIL HOUSE,
KAKKODI AMSOM AND MAKKADA DESOM,
KOZHIKODE TALUK-673611.
BY ADV SRI.M.KRISHNA KUMAR
RESPONDENTS/RESPONDENTS/DEFENDANTS:
1 K.T.CHATHUKUTTY,
AGED 85 YEARS,
S/O.CHATHU,
SHEEJA NIVAS, ELATHUR VILLAGE,
PUTHUR DESOM, KOZHIKODE TALUK-673303.
2 P.THANKAM,
AGED 82 YEARS,
W/O.LATE SHEKHARAN,
PUZHAVAKKATH HOUSE, ELATHUR AMSOM,
KARANNUR DESOM,
KOZHIKODE TALUK-673021.
3 P.RAMAPRASAD,
AGED 63 YEARS,
S/O.LATE SHEKHARAN,
PUZHAVAKKATH HOUSE, ELATHUR AMSOM, KARANNUR DESOM,
KOZHIKODE TALUK-673021.
4 P.PRADEEPKUMAR,
AGED 61 YEARS,
S/O LATE SHEKHARAN,
PUZHAVAKKATH HOUSE, ELATHUR AMSOM, KARANNUR DESOM,
KOZHIKODE TALUK-673021.
R.S.A.Nos.581 & 582 of 2021
..2..
5 P.PROMODKUMAR,
AGED 59 YEARS,
S/O.LATE SHEKHARAN,
PUZHAVAKKATH HOUSE, ELATHUR AMSOM, KARANNUR DESOM,
KOZHIKODE TALUK-673021.
6 PRASEEJA KUMAR,
AGED 57 YEARS,
D/O.LATE SHEKHARAN,
PUZHAVAKKATH HOUSE, ELATHUR AMSOM, KARANNUR DESOM,
KOZHIKODE TALUK-673021.
7 PRABHIJAKUMARI,
AGED 52 YEARS,
D/O LATE SHEKHARAN,
PUZHAVAKKATH HOUSE, ELATHUR AMSOM, KARANNUR DESOM,
KOZHIKODE TALUK-673021.
8 JUSIFA,
AGED 53 YEARS,
W/O.PANTHAR KUNHIMOHAMMED,
P.K.M.MANZIL, PALLIPADAM AMSOM DESOM,
NILAMBUR TALUK, MALAPPURAM DISTRICT-679329.
9 FATHIMATH SHYNI,
AGED 36 YEARS,
D/O.PANTHAR KUNHIMOHAMMED,
P.K.M.MANZIL, PALLIPADAM AMSOM DESOM,
NILAMBUR TALUK, MALAPPURAM DISTRICT-679329.
10 SHAHIM.P,
AGED 30 YEARS,
S/O.PANTHAR KUNHIMOHAMMED,
P.K.M.MANZIL, PALLIPADAM AMSOM DESOM,
NILAMBUR TALUK, MALAPPURAM DISTRICT-679329.
11 SHARVAN.P,
AGED 26 YEARS,
S/O.PANTHAR KUNHIMOHAMMED,
P.K.M.MANZIL, PALLIPADAM AMSOM DESOM,
NILAMBUR TALUK, MALAPPURAM DISTRICT-679329.
R8 & R10 BY SR.ADV.SRI.T.SETHUMADHAVAN,
SMT.P.V.PREETHI, SRI.M.V.BALAGOPAL
THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION
ON 30.09.2021, ALONG WITH RSA.582/2021, THE COURT ON
06.10.2021 DELIVERED THE FOLLOWING:
R.S.A.Nos.581 & 582 of 2021
..3..
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE N.ANIL KUMAR
WEDNESDAY, THE 6TH DAY OF OCTOBER 2021 / 14TH ASWINA, 1943
RSA NO. 582 OF 2021
AGAINST JUDGMENT AND DECREE IN AS 25/2018 OF ADDITIONAL
DISTRICT COURT-III, KOZHIKODE DTD.31.1.2020 ARISING FROM THE
JUDGMENT AND DECREE IN O.S.No.696/2008 ON THE FILE OF THE
ADDITIONAL SUB COURT-I, KOZHIKODE DTD.27.10.2017
APPELLANTS/APPELLANTS/DEFENDANTS:
1 T.MANI,
AGED 52 YEARS,
S/O.SREEDHARAN.
2 SHAJI,
AGED 45 YEARS,
S/O.SREEDHARAN.
BOTH RESIDING AT THAZHATHAYIL HOUSE,
KAKKODI AMSOM AND MAKKADA DESOM,
KOZHIKODE TALUK - 673 611.
BY ADV SRI.M.KRISHNAKUMAR
RESPONDENTS/RESPONDENTS/PLAINTIFFS:
1 K.T.CHATHUKUTTY,
AGED 85 YEARS,
S/O.CHATHU, SHEEJA NIVAS, ELATHUR VILLAGE,
PUTHUR DESOM, KOZHIKODE TALUK - 673 303.
2 P.THANKAM,
AGED 82 YEARS,
W/O.LATE SHEKHARAN, PUZHAVAKKATH HOUSE,
ELATHUR AMSOM, KARANNUR DESOM,
KOZHIKODE TALUK - 673 021.
R.S.A.Nos.581 & 582 of 2021
..4..
3 P.RAMAPRASAD,
AGED 63 YEARS,
S/O.LATE SHEKHARAN,
PUZHAVAKKATH HOUSE, ELATHUR AMSOM,
KARANNUR DESOM, KOZHIKODE TALUK - 673 021.
4 P.PRADEEPKUMAR,
AGED 61 YEARS,
S/O.LATE SHEKHARAN,
PUZHAVAKKATH HOUSE,
ELATHUR AMSOM, KARANNUR DESOM,
KOZHIKODE TALUK - 673 021.
5 P.PRAMODKUMAR,
AGED 59 YEARS,
S/O.LATE SHEKHARAN,
PUZHAVAKKATH HOUSE,
ELATHUR AMSOM, KARANNUR DESOM,
KOZHIKODE TALUK - 673 021.
6 PRASEEJA KUMAR,
AGED 57 YEARS,
D/O.LATE SHEKHARAN,
PUZHAVAKKATH HOUSE,
ELATHUR AMSOM, KARANNUR DESOM,
KOZHIKODE TALUK - 673 021.
7 PRABHIJAKUMARI,
AGED 52 YEARS,
D/O.LATE SHEKHARAN,
PUZHAVAKKATH HOUSE,
ELATHUR AMSOM, KARANNUR DESOM,
KOZHIKODE TALUK - 673 021.
8 JUSIFA,
AGED 53 YEARS,
W/O.PANTHAR KUNHIMOHAMMED,
P.K.M.MANZIL, PALLIPADAM AMSOM DESOM,
NILAMBUR TALUK, MALAPPURAM DISTRICT - 679 329.
9 FATHIMATH SHYNI,
AGED 36 YEARS,
D/O.PANTHAR KUNHIMOHAMMED,
P.K.M.MANZIL, PALLIPADAM AMSOM DESOM,
NILAMBUR TALUK, MALAPPURAM DISTRICT - 679 329.
10 SHAHIM.P.,
AGED 30 YEARS,
S/O.PANTHAR KUNHIMOHAMMED,
P.K.M.MANZIL, PALLIPADAM AMSOM DESOM,
NILAMBUR TALUK, MALAPPURAM DISTRICT - 679 329.
R.S.A.Nos.581 & 582 of 2021
..5..
11 SHARVAN.P.,
AGED 26 YEARS,
S/O.PANTHAR KUNHIMOHAMMED,
P.K.M.MANZIL, PALLIPADAM AMSOM DESOM,
NILAMBUR TALUK, MALAPPURAM DISTRICT - 679 329.
R8 & R10 BY SR.ADV.SRI.T.SETHUMADHAVAN,
SMT.P.V.PREETHI, SRI.M.V.BALAGOPAL
THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION
ON 30.09.2021, ALONG WITH RSA.581/2021, THE COURT ON
06.10.2021 DELIVERED THE FOLLOWING:
R.S.A.Nos.581 & 582 of 2021
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[CR]
JUDGMENT
The plaintiffs filed O.S.No.365/2007 on the file of the Additional Sub Court-I, Kozhikode (hereinafter referred to as 'the trial court') for permanent prohibitory injunction restraining the defendants from evicting the plaintiffs forcefully. However, the defendants filed O.S.No.696/2008 on the file of the trial court for recovery of the plaint schedule property from the plaintiffs. For the sake of convenience, the parties are referred to as per their litigious status before the trial court in O.S.No.365/2007.
2. The plaint schedule property having an extent of 11.5 cents of land with a three storied shopping complex belonged to a registered partnership firm under the name and style 'M/s.Three Associates', in which Sri.T.Mani, the 2nd plaintiff was a partner along with Sri.T.A.Krishnan and Sri.Kiran Babu as partners. In the year 1997, the 1 st R.S.A.Nos.581 & 582 of 2021 ..7..
plaintiff approached the partners of the firm seeking to get possession of the shop room as a tenant for conducting a bakery business. The partners of the firm, namely, Sri.T.A.Krishnan and Sri.Kiran Babu had agreed to lease out the plaint schedule shop room to the 1 st plaintiff. The 2nd plaintiff also wanted to include him in the business. Accordingly, on 3.11.1997, Sri.T.A.Krishnan and Sri.Kiran Babu rented out their 2/3rd share over the plaint schedule property in favour of the plaintiff on a monthly rent of Rs.1,000/-. Thereupon, the 2nd plaintiff obtained licence from the Corporation of Kozhikode for conducting bakery business in the plaint schedule shop room. Earlier, Sri.T.A.Krishnan, Sri.Kiran Babu and the 2nd plaintiff had availed a loan for their partnership business mortgaging the plaint schedule property by way of deposit of title deeds in favour of the Kerala Financial Corporation (for short 'the KFC'). Subsequently, they defaulted in paying R.S.A.Nos.581 & 582 of 2021 ..8..
the amount in time. Hence, recovery proceeding was initiated by the KFC and the property was brought to sale. The property was purchased by the defendants. Alleging fraud in the matter of sale, several litigations were launched before the courts. Those litigations were dismissed confirming the sale in favour of the defendants. According to the plaintiffs, they have been in possession of the suit property in their personal capacity as tenants in occupation of the shop room for conducting a bakery therein. The suit was filed in the year 2007 seeking to restrain the defendants, who are admittedly auction purchasers, from forcefully evicting the plaintiffs.
3. The defendants filed a suit for recovery of possession as O.S.No.696/2008 before the trial court and both the suits were tried together. The main contention of the plaintiffs is that the plaintiffs are entitled to get the benevolent provisions under the Kerala Buildings (Lease R.S.A.Nos.581 & 582 of 2021 ..9..
and Rent Control) Act, 1965 (for short 'Act 2 of 1965').
4. The defendants contended that they have purchased the plaint schedule property in auction conducted by the KFC. According to them, as per Ext.B2 sale deed No.1192/2007 dated 23.1.2007 executed by the KFC in favour of the defendants, they have assumed title over the plaint schedule property. The defendants bid the property in auction conducted by the KFC and the sale was confirmed in favour of them. Thereafter the sale deed was executed in favour of the defendants. It was contended that the defendants are not tenants coming under the purview of the Act 2 of 1965.
5. The trial court framed necessary issues during the trial. Both cases were tried jointly. Treating O.S.No.365/2007 as the leading case, PWs.1 to 4 were examined on the side of the plaintiffs and marked Exts.A1 to A21. DW1 was examined on the side of the defendants R.S.A.Nos.581 & 582 of 2021 ..10..
and marked Exts.B1 to B42. Ext.C1 is the commission report filed by the Advocate Commissioner. Exts.X1 to X(6) series were also marked.
6. The trial court after considering the oral and documentary evidence of the parties has come to the conclusion that the plaintiffs are not entitled to get an equitable remedy of injunction. The suit was dismissed. However, the suit filed by the defendants for recovery of possession from the plaintiffs was decreed. Feeling aggrieved, the appellants, who are the plaintiffs in O.S.No.365/2007 and the defendants in O.S.No.696/2008, filed A.S.No.24/2018 and A.S.No.25/2018 respectively before the Additional District Court-III, Kozhikode (hereinafter referred to as 'the first appellate court'). The first appellate court dismissed the appeals confirming the judgment and decree of the trial court. Aggrieved by the concurrent findings of the two courts below, the plaintiffs R.S.A.Nos.581 & 582 of 2021 ..11..
have filed the present appeals before this Court.
7. Heard Sri.M.Krishna Kumar, the learned counsel for the appellants and Sri.T.Sethumadhavan, the learned Senior Counsel for the respondents 8 and 10.
8. Sri.M.Krishna Kumar, the learned counsel for the appellants submits that the plaintiffs are lessees and they have a right to be in possession of the suit property during the period of the lease and this right cannot be taken away except in accordance with the procedure established by law. It is submitted that there is nothing under the provisions of the KFC Act to show that the right of a lessee to remain in possession of the mortgaged property during the period of the lease stands extinguished when the mortgagee initiates auction under the provisions of the KFC Act. It is submitted that in the absence of any express language under the provisions of the KFC Act affecting a lease of a mortgaged property R.S.A.Nos.581 & 582 of 2021 ..12..
made by the borrower in favour of a lessee, the lease continues to be valid even after the mortgagee initiates auction for realisation of the debt under the provisions of the KFC Act. The learned counsel further submits that the lease deed in favour of the plaintiffs satisfies all the conditions and requirements contemplated under Section 65A of the Transfer of Property Act (for short 'the T.P. Act'). According to the learned counsel for the appellants, normally proceedings should have been initiated for eviction of a tenant before the Rent Control Court. According to him, the suit for recovery of possession was filed presumably on the strength of Division Bench ruling of this Court in Antony v. Kerala Financial Corporation [1999 KHC 352]. Nevertheless, in Pushpangadan.N.P. & others v. Federal Bank Ltd. & others [2011 (4) KHC 40], a Full Bench of this Court overruled the decision in Antony's case (supra) and held that special statute does not R.S.A.Nos.581 & 582 of 2021 ..13..
override the local law and they are tenants in such buildings. It was submitted that they do have protection under the Rent Control law in Kerala. Thus, it was argued that the appellants were in possession much before the defendants came into the picture and much before the auction was conducted by the KFC. The learned counsel further contended that the decree passed by the trial court lacks inherent jurisdiction and is a nullity in the eye of law.
9. Per contra, the learned Senior Counsel for the respondents contended that there were no restrictions on the right of the borrower to make a lease of an immovable property prior to the mortgage by deposit of title deeds in favour of the KFC. Once mortgage is created, their right to make a lease of the mortgaged property is regulated by the provisions contemplated under Section 65A of the T.P. Act. According to the learned Senior Counsel, Sub-section R.S.A.Nos.581 & 582 of 2021 ..14..
(3) of Section 65A of the T.P.Act makes it clear that if a contrary intention is expressed in the mortgage deed prohibiting the mortgager from making a lease of the mortgaged property while he is in lawful possession of the property, the mortgager cannot make a lease and if such lease is made, it is not binding on the mortgagee. In support of this submission, the learned Senior Counsel referred to the observations of the Apex Court in Harshad Govardhan Sondagar v. International Assets Reconstruction Company Limited and others [(2014) 6 SCC 1] and Bajarang Shyamsunder Agarwal v. Central Bank of India & others [AIR 2019 SC 5017].
10. Assailing the auction proceedings in favour of the defendants by the KFC, one of the partners, namely, Kiran Babu admittedly filed a writ petition before this Court as W.P.(C)No.10189/2006. The writ petition was dismissed as per Ext.B32 on 14.8.2006. Challenging R.S.A.Nos.581 & 582 of 2021 ..15..
Ext.B32, Kiran Babu filed W.A.No.1546/2006 before this Court. The writ appeal was dismissed as per Ext.B33 on 24.8.2006. Kiran Babu filed W.P.(C)No.34808/2005 before this Court seeking time to settle the dispute with the KFC. By Ext.B31 judgment dated 23.12.2005, this Court granted time till 28.2.2006 to settle the matter with the KFC. However, no payment was made within the time stipulated by this Court. Consequently, the KFC proceeded with the auction. The 2nd plaintiff challenged the auction proceeding in W.P.(C)No.2700/2007 before this Court. It was also dismissed as per Ext.B34. As directed by this Court, the Sub Registrar, West Hill registered the sale deed in favour of the auction purchasers. Accordingly, Ext.B2 sale deed was registered.
11. The 2nd defendant Sekharan filed O.S.No.546/2006 before the Munsiff's Court, Kozhikode restraining the 2nd plaintiff and others from causing any R.S.A.Nos.581 & 582 of 2021 ..16..
alteration or doing anything against his possession over the plaint schedule property or fabricating any documents therein. The suit was decreed as per Ext.B9 judgment and Ext.A18 decree. Challenging the judgment and decree, the 2nd plaintiff and others filed A.S.No.282/2007 before the District Court which was also dismissed as per Ext.B28 judgment and Ext.B27 decree. The judgment and decree restraining the 2nd plaintiff and others from disturbing the possession of the 2nd defendant over the plaint schedule property are still in force. The decree has become final between the parties. The 2nd plaintiff is bound by the terms of the decree and he cannot travel beyond the scope of the decree to plead otherwise in this suit.
12. Challenging the dismissal of O.S.No.405/2010 of the Additional Sub Court-III, Kozhikode, seeking to set aside Ext.B2 sale held under the Kerala State Financial Corporation Act, (for short 'SFC Act') Kiran Babu filed R.S.A.Nos.581 & 582 of 2021 ..17..
R.F.A.(Indigent) No.709/2016 before this Court. The appeal was dismissed by the judgment and decree dated 17.7.2019. It is clear from the judgment that during the year 1995-96, for the purpose of constructing a shopping complex in the property, the firm availed financial assistance from the KFC. Subsequently, additional facilities were availed on 18.1.1996 and 16.8.1996 respectively. On failure to repay the loan amount, possession of the property was taken over by the KFC under Section 29 of the SFC Act on 15.5.2001. Thereafter, one of the partners, namely, Krishnan retired from the firm on 23.4.2003. By virtue of an assignment deed, his rights over the property was conveyed in favour of the plaintiff. Since the debt was not paid off, KFC initiated proceedings for sale of the property and Ext.B2 sale deed was executed in favour of the defendants. There were a couple of writ proceedings which constituted the delay in execution of Ext.B2 sale R.S.A.Nos.581 & 582 of 2021 ..18..
deed. Although a suit was filed to challenge the proceedings it was dismissed. Later, the dismissal was confirmed by this Court.
13. Admittedly, the lease agreement was made on 3.11.1997 subsequent to the equitable mortgage created in favour of the KFC by the 2nd plaintiff and others. The plaintiffs have no case that they have been in possession of the scheduled property prior to the mortgage in favour of the KFC. As per the provisions of the SFC Act, if the borrowers fail to pay the amount, the KFC is entitled to recover the amount in accordance with the Act. If the lease was prior to the mortgage of the property, the tenant shall have the right to enjoy the leasehold premises in accordance with the terms and conditions of the lease irrespective of whether a subsequent mortgage was created by the borrower. Thus, possession of the lessee are under the three categories. Firstly, leases R.S.A.Nos.581 & 582 of 2021 ..19..
created prior to the mortgage, secondly, leases created in accordance with Section 65A of the T.P.Act and thirdly, leases created subsequent to the mortgage except in accordance with sub-section (2) of Section 65A of the T.P.Act. In Harshad Govardhan's case (supra) the Apex Court has provided the right to the Banks and other similar financial institutions facilitating speedy recovery of their dues by paving way to the bank to secure quick vacant possession of the property even by evicting certain kinds of tenants. A tenant who was inducted into the property before it was mortgaged to the bank is certainly protected under the Rent Act. The very same principle is discussed in Bajarang Shyamsunder's case (supra). In the case on hand, the tenancy was created on 3.11.1997 for a period of three months from 3.11.1997.
14. In view of the contention that the appellant is entitled to get the benefit of the Full Bench decision in R.S.A.Nos.581 & 582 of 2021 ..20..
Pushpangadan's case (supra), this Court deems fit and proper to examine the legal issue involved in the said case. In Pushpangadan's case (supra) a Full Bench of this Court held in paragraph 47 of the judgment as follows:-
"47. For the aforesaid reasons, we answer the reference as follows: The Securitisation Act has no overriding effect over the provisions of the Kerala Buildings (Lease and Rent Control) Act, 1965. A tenant inducted in the premises before creation of the security interest cannot be summarily evicted under Sections 13(4) and 14 of the Securitisation Act. We also hold that such a tenant, whose right, title, interest or possession is affected by a measure taken under Section 13(4) of the Securitisation Act, would be entitled to make an application to the Debts Recovery Tribunal under Section 17 of the Securitisation Act."
15. It is clear from the above judgment that a tenant inducted in the premises before creation of the R.S.A.Nos.581 & 582 of 2021 ..21..
security interest cannot be summarily evicted under Section 13(4) and 14 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (for short 'Securitisation Act'). There is no evidence in this case to hold that at the time of creation of the mortgage by the mortgager, the leasehold right in favour of the plaintiffs was in force. The 2nd plaintiff was one of the partners of the firm and he was aware of the mortgage created in favour of the KFC. He suffered orders and decrees in the earlier litigations between the parties. It is the specific case of the defendants that the 1st plaintiff is none other than the brother of the 2nd plaintiff and the suit was filed out of frustration as an experimental measure to flout the recovery proceedings.
16. After the mortgage of an immovable property is created by the borrower in favour of the mortgagee, the R.S.A.Nos.581 & 582 of 2021 ..22..
right of the borrower is regulated by Section 65A of the T.P.Act. The sub-section (1) of Section 65A of the T.P.Act states that subject to the provisions of sub-section (2); a mortgager, while lawfully in possession of the mortgaged property, shall have power to make leases thereof which shall be binding on the mortgagee. Sub-section (3) of Section 65A of the T.P.Act further provides that such power is available with the mortgager to make a lease of the mortgaged property only if and as far as a contrary intention is not expressed in the mortgage deed. Needless to say, so long as the mortgage deed does not prohibit a mortgager from making a lease of the mortgaged property and so long as the lease satisfies the requirements of sub- section (2) of Section 65A of the T.P.Act, a lease made by a borrower as a mortgager is not only valid but also binding on a mortgagee. In the instant case, the period of lease expired after three months from 3.11.1997. There R.S.A.Nos.581 & 582 of 2021 ..23..
is no clause in the lease deed to renew the lease.
17. In the present case, the bonafides of the plaintiffs are highly doubtful. The 1 st plaintiff is one of the partners of the firm. The firm borrowed money from the KFC and mortgaged the scheduled property with the KFC. The present case involves the 1 st plaintiff who allegedly entered into an unregistered lease along with the 2 nd plaintiff for 3 months after the mortgage was entered into between the borrowers and the KFC. Considering the fact that the contractual period is only for 3 months and the lease agreement does not contain a clause for renewal with the consent of the mortgagee, the plaintiffs do not have any legal rights over the leasehold premises. They can only be treated as 'tenant at sufferance'. The 'tenant at sufferance' is one who wrongfully continues in possession after the extinction of a lawful title. Thus, it is clear that the alleged possession of the plaintiffs in the R.S.A.Nos.581 & 582 of 2021 ..24..
plaint schedule property after the expiry of the lease period is contrary to the provisions contained under Section 65A of the T.P.Act. The operation of the Rent Act cannot be extended to the plaintiffs as held in Bajarang Shyamsunder's case (supra). Contra interpretation would violate the provisions under Section 29 of the SFC Act to realise the amount due from the borrowers in accordance with the provisions of the SFC Act.
18. In Kerala State Financial Enterprises Ltd. v. Meenachil Co-operative Agricultural and Rural Development Bank Ltd. and others [AIR 2005 Kerala 76] this Court observed in paragraph 16 of the judgment as under:-
"16. It is beyond dispute that mortgage by deposit of title deeds is a valid procedure, accepted under the Transfer of Property Act, for creating an encumbrance. Under Section 58(a) of the Act, a mortgage is a transfer of interest in specific immovable property. This may be for the R.S.A.Nos.581 & 582 of 2021 ..25..
purpose of securing the payment of money advanced or to be advanced by way of a loan. It includes an existing or future debt over the performance of an engagement which may give right to pecuniary liability. It is undisputable that in respect of a Kuri transaction the petitioner had entered into such an arrangement. The law recognizes a mortgage by deposit of title deeds. When a person delivers to the creditor or the agent, document of title to immovable property with intent to create a security thereon, the transaction is a mortgage by deposit of title deeds (Section 58(f) of the Transfer of Property Act). The petitioner claims that a mortgage deed as envisaged under Section 2(17) of the Indian Stamps Act is in existence. A mortgager therefore is disabled from further encumbering the properties in any case without the junction of mortgagee. It can well be presumed that a liability is automatically attached to the property and it is a burden imposed upon the land and the interest in the land, by the owner of the land."
19. Facts involved in this case have been fairly tried by two courts and same conclusion was reached by both R.S.A.Nos.581 & 582 of 2021 ..26..
the courts. The suit filed by the plaintiffs was dismissed mainly for the reason that their conduct in instituting the suit is rather suspicious. Injunction is a discretionary remedy. The 2nd plaintiff was a party to the earlier proceedings and he suffered a decree ultimately when he challenged the sale proceedings before the civil court. He is not justified in contending that he is a tenant of the plaint schedule property under Act 2 of 1965. In fact, there was a decree restraining him from interfering with the defendants possession over the plaint schedule property. When there is a valid decree against him, he filed a suit seeking an injunction to protect his tenancy right over the same. He did not raise a contention in the earlier suit that he had a right to continue in the premises as a tenant and hence he could not be restrained by way of an injunction. Despite repeated findings against him in numerous judgments of this Court, he filed the present R.S.A.Nos.581 & 582 of 2021 ..27..
suit for injunction simpliciter along with the 2nd plaintiff to protect his purported tenancy arrangement in the plaint schedule property. This Court is of the view that the two courts below are perfectly justified in disallowing the discretionary remedy of injunction.
20. This Court can exercise its jurisdiction under Section 100 of the CPC only on the basis of substantial questions of law which are to be framed at the time of admission of the second appeal. It is equally settled that the High Court in second appeal is not entitled to interfere with the concurrent findings of facts arrived at by the two courts below until and unless it is found that the concurrent findings of facts were perverse and not based on sound reasonings. This Court does not find that the concurrent findings of facts arrived at by the trial court as well as the first appellate court are either perverse or without any reason or based on non-consideration of R.S.A.Nos.581 & 582 of 2021 ..28..
important piece of evidence or admission of some of the parties.
21. Reverting back to the case on hand, it is not in dispute that the defendants are the owners of the plaint schedule property pursuant to Ext.B2 sale deed in their favour. As noticed earlier, the plaintiffs are not entitled to claim the benefit under the Act 2 of 1965. Hence, the trial court granted a decree for recovery of possession directing the plaintiffs to surrender the plaint schedule property to the defendants. No substantial questions of law arise for consideration in these appeals. Hence, these Regular Second Appeals are liable to be dismissed in limine.
Accordingly, these Regular Second Appeals are dismissed. There would be no order as to costs. Pending applications, if any, stand closed.
Sd/-
N.ANIL KUMAR, JUDGE skj