Darly Shajan v. Shajan Thomas and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** ## **FRIDAY, THE 1ST DAY OF JULY 2016/10TH ASHADHA, 1938** ## **WP(C).No. 27669 of 2015 (G)** ## **----------------------------** ## **PETITIONER(S): -------------** **DARLY SHAJAN, AGED 48 YEARS, W/O. SHAJAN, PADAYATTIL HOUSE, ANGAMALY KARA, ANGAMALY VILLAGE, ALUVA TALUK.** **BY ADVS.SRI.M.RAMESH CHANDER (SR.) SMT.P.I.SHAMLATH** **RESPONDENT(S):** **--------------** ## **1. SHAJAN THOMAS** **AGED 51 YEARS, S/O.(LATE)THOMAS, PADAYATTIL HOUSE, ANGAMALI KARA, ANGAMALI VILLAGE, ALUVA TALUK. 683 572.** ## **2. SHANTU THOMAS** - **AGED 47 YEARS, S/O.(LATE)THOMAS, PADAYATTIL HOUSE, ANGAMALI KARA, ANGAMALI VILLAGE, ALUVA TALUK. 683 572.** ## **3. WILSON @ SHIBU** - **S/O.(LATE) THOMAS, AGED 41 YEARS, PADAYATTIL HOUSE, ANGAMALI KARA, ANGAMALI VILLAGE, ALUVA TALUK. 683 572.** ## **4. THE AUTHORIZED OFFICER** - **DEWAN HOUSING FINANCE CORPORATION LTD. (DHFL), K.M.M. BUILDING, 1ST FLOOR, PALARIVATTOM, COCHIN 682 025.** ## **5. JINIMOL P.M.** - **THE ADVOCATE COMMISSIONER, ADVOCATE, ERNAKULAM DISTRICT COURT BAR ASSOCIATION, ERNAKULAM - 682 031.** **R4 BY ADV. SRI.P.PAULOCHAN ANTONY R4 BY ADV. SRI.G.AJITH KUMAR R1 BY ADV. SRI.PRASAD CHANDRAN** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 01-07-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No. 27669 of 2015 (G)** **----------------------------** ## **APPENDIX** **PETITIONER(S)' EXHIBITS** **-----------------------** **EXT. P1 - THE TRUE COPY OF THE M.C.NO.45/2015 PENDING BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE COURT, ANGAMALI.** **EXT. P2 - THE TRUE COPY OF THE INTERIM ORDER IN CMP 1060/2015 DATED 7TH AUGUST 2015** **RESPONDENT(S)' EXHIBITS** **-----------------------** **NIL** **/TRUE COPY/** **P.A. TO JUDGE** **sou.** ## **A.M. SHAFFIQUE, J** - - - - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No. 27669 of 2015 - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 1[st] day of July, 2016 ## **JUDGMENT** This writ petition is filed seeking for a direction to the respondents 4 and 5 not to dispossess the petitioners from the building situated in R.S. No.95/7, Block No.12 of Angamali Village. This writ petition is filed by the petitioner _inter alia_ contending that she being the wife of the 1[st] respondent and sister in law of respondents 2 and 3 have filed an application before the Judicial Magistrate of First Class, Angamali under the Protection of Women from Domestic Violence Act, 2005. As per order dated 07.08.2015 in CMP No. 1060/15 in MC No.45/15 which is produced as Ext.P2, the learned Magistrate had restrained the respondents from ousting the petitioner from the shared house. 2. Petitioner submits that she had been residing in the aforesaid building in RS No.95/7, Block No.12 of Angamali Village since 1991. Now that steps are being taken by respondents 4 and 5 under the SARFAESI Act, 2002, this writ petition is filed apprehending that she will be dispossessed from the property. WPC 27669/15 -:2:- 3. Learned Senior Counsel appearing for the petitioner submits on the basis of Section 35 of the SARFAESI Act that the Domestic Violence Act is in addition to and not in derogation with the SARFAESI Act. In so far as special right has been conferred to persons like the petitioner under the Domestic Violence Act, no steps can be taken by the secured creditor under the SARFAESI Act to evict the petitioner unless orders are modified by the Court granting right of residence. Reference is also made to the judgment of the Apex Court in **Vishal N. Kalsaria V. Bank of India** [2016 (1) KLT 623 (SC)] wherein the Apex Court had occasion to consider the scope and effect of Section 35 of the SARFAESI Act. After referring to Section 35 of the SARFAESI Act it is held in paragraph 30 as under: “30. It is a settled position of law that once tenancy is created, a tenant can be evicted only after following the due process of law, as prescribed under the provisions of the Rent Control Act. A tenant cannot be arbitrarily evicted by using the provisions of the SARFAESI Act as that would amount to stultifying the statutory rights of protection given to the tenant. A _non obstante_ clause (Section 35 of the SARFAESI Act) cannot be used to bulldoze the statutory rights vested on the tenants WPC 27669/15 -:3:- under the Rent Control Act. The expression 'any other law for the time being in force' as appearing in Section 35 of the SARFAESI Act cannot mean to extend to each and every law enacted by the Central and State legislatures. It can only extend to the laws operating in the same field. Interpreting the non obstante clause of the SARAESI Act, a three Judge Bench of this Court in case of Central Bank of India v. State of Kerala & Ors. (2009 (1) KLT SN 53 (C.No.58) SC = (2009) 4 SCC 94) has held as under : **==> picture [326 x 11] intentionally omitted <==** 4. The Apex Court held that the right of tenants should be protected who are in occupation of a building which was a secured asset. On the other hand, learned counsel appearing for respondents 4 and 5 placed reliance on the judgment of this Court in **Mary Jacob V. Elizabeth Jacob and others** [2015 (5) KHC 234], wherein the learned Single Judge of this Court held in the light of Sections 17 and 19 of the Domestic Violence Act that protection under the Act can be given even by providing alternate accommodation. It is further contended that the property was originally mortgaged by the father-in-law of the petitioner and not by the husband of the petitioner and therefore, it is apparent that it is not a shared property as far as the petitioner is WPC 27669/15 -:4:- concerned. Father-in-law died and property is succeeded to the legal heirs. It is contended that the legal heirs' right is only subject to mortgage. 5. There cannot be any dispute regarding the right of the Bank to proceed under the SARFAESI Act is concerned. The only issue is with reference to the restriction over the said right on account of an order being passed by Magistrate under the Domestic Violence Act. 6. True that the Apex Court has interpreted Section 35 of the Act in an instance relating to the consideration of right of tenants. The interpretation of Section 35 cannot be doubted at all. But that is not the sole situation in the present case. This is a case in which a person claims right of residence in respect of a household which has been mortgaged in favour of respondents 4 and 5. The right to residence is available only until the person against whom the order is passed has a right over a property and the moment that right extinguishes by a statutory format under the SARFAESI Act, further right cannot be claimed by any WPC 27669/15 -:5:- person who claims such a right under the Domestic Violence Act or any other statutory right as the case may be. The right of tenants of course has been protected by judgments of Apex Court in **Harshad Govardhan Sondagar v. International Assets Reconstruction Co. Ltd & Ors.** [2014) (3) KLT 357 (SC)] and which is clarified in **Vishal** 's case (supra). 7. As far as the case on hand is concerned, I am of the view that SARFAESI Act is a special procedure by which, without intervention of Court or Tribunal, the secured creditor is entitled to proceed against the secured asset. Section 13(4) relates to several measures which are basically taken by authorised person of the Bank, which includes taking possession of the property. In the present case the learned Chief Judicial Magistrate has already issued a direction by appointing an Advocate Commissioner to take possession of the premises. It is also stated by learned counsel for respondents 4 and 5 that possession has been taken except the household in question. WPC 27669/15 ## -:6:- 8. Be that as it may, when a right has been conferred on the Bank to take possession through a process known to law, I do not think that the order passed by learned Magistrate by way of Ext.P2 will stand in the way of respondents 4 and 5 to exercise their statutory right. 9. In other words, an order passed under the Domestic Violence Act cannot overcome the right of the second creditor to take possession under the SARFAESI Act. The right of the petitioner ceases the moment the right of the mortgagor is taken over by the Bank under the Statute. There is no merit in the above writ petition and the same is dismissed. Sd/- **A.M. Shaffique** **Judge** ttb/04/07