Ammini Peter v. Union of India, Syndicate Bank Limited, Aby Peter, and JINOY M.P

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** **WEDNESDAY, THE 25TH DAY OF MAY 2016/4TH JYAISHTA, 1938** **WP(C).No. 36347 of 2015 (P) ----------------------------** **PETITIONER: -----------** **AMMINI PETER, AGED 60 YEARS, W/O. LATE MR.T.K. PETER, THADIYAN HOUSE, NJARALLOR, KIZHAKKAMBALAM P.O., ERNAKULAM, PIN - 683 562.** **BY ADVS.SRI.SHAJI CHIRAYATH SMT.JIJI M. VARKEY SMT.SAVITHA GANAPATHIYATAN SRI.M.M.SHAJAHAN** **RESPONDENT(S):** **--------------** **1.UNION OF INDIA, MINISTRY OF FINANCE, DEPARTMENT OF FINANCIAL SERVICES, 3RD FLOOR, JEEVAN DEEP BUILDING, SANSAD MARG, NEW DELHI - 110 001, REPRESENTED BY ITS FINANCE SECRETARY.** **2.SYNDICATE BANK LIMITED,** **HEAD OFFICE AT DOOR NO. 16/355 & 16/365A, MANIPAL P.O., UDUPI DISRICT, KARNATAKA - 576 104, REPRESENTED BY ITS AUTHORISED OFFICER & CHIEF MANAGER MR.VENKATESWARA RAO, AGED 56 YEARS,S/O. MR.RAGHU VEERA NARAYANA RAO.** **3.ABY PETER,AGED 27 YEARS, S/O. LATE MR.T.K.PETER, THADIYAN HOSUE, NJARALLOOR, KIZHAKKAMBALAM P.O., ERNAKULAM - 683 562.** **--2--** **--2--** **WP(C).No. 36347 of 2015 (P)** **---------------------------** **4.JINOY M.P, AGED 40 YEARS,** **S/O. MR.PATHROSE, MANOTTUKUDI HOUSE, KOODALAPADU, KOVAPADI P.O., ERNAKULAM - 683 544.** **R1 BY SRI.N.NAGARESH, ASSISTANT SOLICITOR GENERAL SRI.JAGADEESH LAKSHMAN, CGC R2 BY SRI.R.S. KALKURA, SC R3 BY ADV. SRI.C.AJITH KUMAR** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 25-05-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **mbr/** ## **WP(C).No. 36347 of 2015 (P) ---------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS:** **-----------------------** - **P1 - COPY OF THE CERTIFICATE ISSUED BY THE KUDUMBASREE COMMUNITY DEVELOPMENT SOCIETY OF KIZHAKKAMBALAM PANCHAYATH.** - **P2 - COPY OF THE RESIDENCE ORDER PASSED BY THE JUDICIAL FIRST CLASS MAGISTRATE COURT, KOLENCHERRY UNDER SECTION 19 OF PROTECTION OF WOMEN FROM DOMESTIC VIOLENCE ACT.** - **P3 - COPY OF THE ORDER PASSED BY THE CHIEF JUDICIAL MAGISTRATE COURT, ERNAKULAM UNDER SECTION 14 OF SECURITISATION AND RECONSTRUCTION OF FINANCIAL ASSETS AND ENFORCEMENT OF SECURITY INTEREST ACT.** **RESPONDENT(S)' EXHIBITS: NIL -----------------------** **//TRUE COPY//** **P.S. TO JUDGE** **mbr/** ## **A.M. SHAFFIQUE, J.** ============= W.P. (C) No. 36347 of 2015 =================== Dated this, the 25[th] day of May, 2016 ## **J U D G M E N T** Petitioner has approached this Court challenging Ext.P3, an order passed by the Chief Judicial Magistrate while considering an application submitted by the respondent Bank under Section 14 of the SARFAESI Act. By virtue of the above order, an Advocate Commissioner was appointed to take possession of the premises. Petitioner contends that she is the mother of 3[rd] respondent Aby Peter. She had filed an application before the Judicial First Class Magistrate Court, Kolenchery under the Protection of Women from Domestic Violence Act, 2005 (hereinafter referred to as the 2005 Act) and an interim order had been passed on 11/11/2015, which is as follows: “1) Respondents shall not commit any domestic violence against the petitioner until further orders. 2) Respondents shall not dispossess the petitioner from the house No.24/8 of Kizhakkambalam Panchayath until further orders. Issue notice and order to the respondents.” W.P(C) No.36347/15 ## -:2:- 2. Petitioner submits that in so far as the 2005 Act is a special law to take care of rights of women, her right has to be given precedence before proceedings are taken by the respondent Bank under Section 14 of the SARFAESI Act. It is contended that the Bank is not entitled to take possession of the premises when an interim direction has been issued by the Magistrate under the 2005 Act. Learned counsel for the petitioner also relies upon the judgment of the learned Single Judge of this Court in Radha v. Deputy Tahsildar (2015 (1) KLT 423). That was a case in which a lady belonging to a Scheduled Caste has approached this Court challenging revenue recovery proceedings initiated by the revenue authorities for sales tax dues. It was found that the petitioner was a deserted wife and when an order is passed under the 2005 Act, the revenue authorities cannot recover the amount overlooking the said statutory right available to the petitioner. In paras 9 and 10 of the said judgment, it is held as under: _9. In my view, looking at the facts of the instant case, the interests of justice would require me to hold that the authorities under the Kerala Revenue_ W.P(C) No.36347/15 -:3:- _Recovery Act could not have proceeded to issue Ext.P2 notice proposing a sale of the matrimonial home of the petitioner without taking note of the right available to the petitioner under the 2005 Act, to reside in the said home without being evicted or excluded from it. This is especially so because, in terms of Section 60 of the Kerala Revenue Recovery Act, the sale that is contemplated is one of immovable property that is free of all encumbrances and such a sale cannot be effected in the instant case because the right available to the petitioner, in terms of Section 17 of the 2005 Act, and the non-obstante_ clause therein would be an encumbrance on the property that overrides the provisions of the Kerala Revenue Recovery Act. _10. There is yet another aspect of the matter. Article 21 of the Constitution of India guarantees that no person shall be deprived of his life or personal liberty except according to procedure established by law. Judicial interpretation of Article 21 of the Constitution has seen its scope being widened to take within its embrace a right to live with human dignity. In Chameli Singh v. State of U.P. ((1996) 2 SCC 549), the right was held to include a right to food, water, decent environment, education, medical care and shelter. It was clarified that the right to shelter did not mean a mere right to a roof over one's head. It is also relevant to note that the right is a fundamental one that is guaranteed by the_ -:4:- ## W.P(C) No.36347/15 _State and hence the State Government cannot take any action that will deprive a person of the enjoyment of the rights guaranteed under Article 21 of the Constitution. Viewed in the backdrop of the constitutional guarantee, therefore, the State Government cannot be “Shylockean” in its functioning, and seek to dispossess a deserted wife from her matrimonial home, especially when the right to reside in the said home, without being evicted therefrom, is a statutory protection afforded to her under the 2005 Act. The action proposed through Ext.P2 notice would, therefore, fall foul of the constitutional guarantee offered to the petitioner under Article 21 of the Constitution of India._ _Thus, I am of the view that any action that is proposed by the respondents, for sale of the property described in Ext.P2 notice, must necessarily take into account the rights of the petitioner in respect of the said property. The said aspect not having engaged the attention of the respondents in the instant case, Ext.P2 notice cannot be legally sustained. Resultantly, I quash Ext.P2 notice and declare that proceedings for sale of the property described in Ext.P2 notice, at a time when the petitioner's husband's whereabouts are not known, cannot be continued under the Kerala Revenue Recovery Act, without first ensuring that the petitioner's rights under the 2005 Act are adequately safeguarded. The Writ Petition is thus_ W.P(C) No.36347/15 ## -:5:- _allowed as above, but without any order as to costs.”_ It is therefore contended that Ext.P3 order suffers from infirmity as it has been passed without taking into consideration the rights of the petitioner and therefore, it has to be set aside. Learned counsel also refers to Sections 35 and 37 of the SARFAESI Act and argues that the Act is in addition to and not in derogation of any other law and the overriding effect is only with reference to similar enactments and not with reference to a special enactment like 2005 Act. 3. On the other hand, learned counsel appearing on behalf of the 2[nd] respondent submits that the petitioner cannot have any claim at all in respect of the property in question. On facts, it is stated that the title of the mortgaged property in which the petitioner stakes a claim is a settlement deed executed by the petitioner's husband in favour of the 3[rd] respondent, who is the borrower, without reserving any right at all. In such circumstances, the 3[rd] respondent is the only person entitled to have right over the property and when he has mortgaged the property in favour of the respondent Bank, respondent Bank is W.P(C) No.36347/15 ## -:6:- entitled to take such steps in accordance with law. It is also argued that the judgment in Radha (supra) can have no application to the factual issues made available in the case and does not consider an instance where SARFAESI proceedings had been taken under the SARFAESI Act, 2002. 4. Having heard the learned counsel on either side and having perused the records, I do not think that the judgment in Radha (supra) applies to the fact situation. The said judgment came to be passed under special circumstances which is narrated in the judgment itself. It cannot be a law that a mortgaged property cannot be proceeded by the mortgagee based on any order passed by the Magistrate under Section 19 of the 2005 Act. The order can have force only until the actual owner have right over the property. The moment the actual owner ceases to have any right over the property, the order cannot be enforced. Such a view would virtually make the statutory provisions incorporated under the SARFAESI Act, 2002 ineffective. 5. Sections 35 and 37 of the SARFAESI Act read as under: _"_ _**35. The provisions of this Act to override other law** s :- The provisions of this Act shall have_ -:7:- ## W.P(C) No.36347/15 _effect, notwithstanding anything inconsistent therewith contained in any other law for the time being in force or any instrument having effect by virtue of any such law.”_ ## _“_ _**37. Application of other laws not barred** :-_ _The provisions of this Act or the rules made thereunder shall be in addition to, and not in derogation of, the Companies Act, 1956 (1 of 1956), the Securities Contracts (Regulation) Act, 1956 (42 of 1956), the Securities and Exchange Board of India Act 1992 (15 of 1992), the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (51 of 1993) or any other law for the time being in force”._ It is settled law and as held by the Apex Court in _**Harshad Govardhan Sondagar v. International Assets**_ _**Reconstruction Co. Ltd.**_ [(2014) 6 SCC 1], that if there is any provision in the SARFAESI Act and if there is any provision in any other law, which is inconsistent therewith, the provision of SARFAESI Act will have effect and not the provision of any other law. In the said case, the Apex Court was considering the right of lessees when steps were being taken against them under the SARFAESI Act. The Apex Court held that the rights of lessees will W.P(C) No.36347/15 -:8:- be subject to the provisions of Section 65-A of the Transfer of Property Act. Section 37 apparently is with reference to certain other enactments which has no application to the facts of the case. As far as the 2005 Act is concerned, it cannot confer on the person obtaining an order for residence an unfettered right to prevent the mortgagee from exercising their rights under the SARFAESI Act. 6. In _**Radha's case**_ (supra), the learned Single Judge further proceeded to observe that the State has to take care of the right available to a citizen under Art.21 of the Constitution of India. The said judgment was delivered in the light of the fact that property was proclaimed to be sold for State dues. That is not the situation here. Therefore, as already indicated, the judgment in _**Radha's case**_ (supra) has no application to the present case. 7. In this case, property has been mortgaged by the borrower in favour of the respondent Bank. Under the SARFAESI Act, 2002, substantial rights had been conferred on the mortgagee to enforce the security interest. During such enforcement, if at all the petitioner has any right under any other W.P(C) No.36347/15 -:9:- statute in respect of the property, the same has to be established by resorting to appropriate proceedings. But as matters stand now, the petitioner can only seek for right of residence as long as the owner of the property has surviving interest in the property. The moment the interest is lost and the Bank takes possession, the right to reside ceases. Under such circumstances,I do not think that a challenge to Ext.P3 is sustainable and accordingly, the writ petition is dismissed. Sd/- **A.M. SHAFFIQUE, JUDGE** Rp25/05/2016 //True Copy// P.S to Judge