Dhanalaxmi Bank Ltd v. Santhakumari B.

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR ``` ## **`&`** ``` THE HONOURABLE MR. JUSTICE SHAJI P.CHALY ``` ``` MONDAY, THE 14[TH] DAY OF MARCH 2022 / 23RD PHALGUNA, 1943 ``` ``` WA NO. 348 OF 2022 ``` ``` AGAINST THE ORDER IN WP(C) 2860/2022 OF HIGH COURT OF KERALA ``` ## **`APPELLANT/RESPONDENT:`** ``` DHANALAXMI BANK LTD REPRESENTED BY CHIEF MANAGER, REGIONAL OFFICE, AMRITH PLAZA, NALUMUKKU, PETTAH P.O., THIRUVANANTHAPURAM 695 024. ``` ``` BY ADV KARUNAKARAN.C.K ``` ## **`RESPONDENT/PETITIONER:`** ``` SANTHAKUMARI B. AGED 75 YEARS, W/O.LATE RAJASEKHARAN, LAKSHMI, CHINTHAMANI GARDENS, VALIYAPALLY ROAD, MANACAUD P.O., THIRUVANANTHAPURAM - 695 024. ``` ``` SRI. A.V.THOMAS (SR) ``` ``` THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 14.03.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` **W.A.No.348 of 2022** **2** ## **JUDGMENT** Dated this the 14[th] day of March, 2022 ## **S.Manikumar, C.J.** Before the writ court, respondent/borrower has challenged Exhibit P6 order dated 08.09.2021 passed by the Chief Judicial Magistrate, Thiruvananthapuram. 2. After adverting to the case of the petitioner, writ court vide order dated 28.01.2022 in W.P.(C)No.2680 of 2022, directed the respondents therein not to dispossess the writ petitioner from the residential building specified in Exhibit P2, for a period of two months, on condition that the petitioner deposits an amount of Rs.10,00,000/- (Rupees ten lakhs only) on or before 15.03.2022. 3. Reading of the said interim order further shows that before the writ court, the petitioner even conceded to proceed against 6.10 acres of property in Re-Sy.No.221/12 of Maanikal Village, Nedumangadu Taluk in lieu of the residential property measuring 9 cents of land in Sy.No.319/2 of Manacaud Village, Thiruvananthapuram District. **W.A.No.348 of 2022** **3** ## 4. The interim order dated 28.01.2022, impugned in the writ appeal, reads thus: “Sri.C.K.Karunakaran takes notice for respondent. Respondent has already filed a statement objecting to the contentions in the writ petition. 2. Having regard to the fact that the petitioner’s right to have access to a court of law is curtailed on account of non functioning of Debt’s Recovery Tribunal the case of the petitioner was considered for interim relief. 3. Petitioner had created security interest of two properties belonging to her, for loan facilities availed by her son. Due to default in repayment of the loan, proceedings under the Securitisation Act have been initiated. The first secured asset is a residential property where petitioner who breaths with the support of an oxygen concentrator machine, resides, while the second property is a large extent of 6.10 acres. 4. Petitioner contends that her residential property, having an extent of 9 cents of land in Sy.No.319/2 of Manacaud Village, Thiruvananthapuram District may not be proceeded with, while she has no objection in the respondent proceeding against 6.10 acres of land in Re.Sy.No.221/12 Maanikal village Nedumangadu Taluk, which according to her is more than sufficient to clear the entire liability. 5. Having regard to the submissions made as above and the circumstances pleaded in the writ petition I am of the view that the respondent ought to be permitted to **W.A.No.348 of 2022** **4** proceed for the time being, only against the 6.10 Acres of property mentioned above. Since the circumstances pleaded by the petitioner as evident from paragraph-15 of the writ petition compels this Court to grant a relief in the interests of justice, to protect the residential building for the time being, I direct the respondents not to dispossess the petitioner from the residential building specified in Ext.P2, for a period of two months, on condition that petitioner deposits an amount of Rs.10,00,000/- (Rupees ten lakhs only) on or before 15/03/2022.” 5. Mr. C.K. Karunakaran, learned counsel appearing for the appellant Bank submitted that despite the statement filed and submissions made, the writ court had not adverted to the same and passed an interim order, ignoring the fact that the writ petitioner has to pay a huge amount of nearly rupees four crores. 6. Mr.A.V.Thomas, learned Senior Counsel for the respondent/writ petitioner submitted that as directed by the writ court, a sum of Rs.10 lakhs has already been deposited within time. 7. We have heard learned counsel for the parties and perused the material available on record. **W.A.No.348 of 2022** **5** 8. Material on record discloses that for the default in repayment, action has been taken under the provisions of the SARFAESI Act, 2002. 9. Vide Exhibit P6 order dated 28.01.2022, the Chief Judicial Magistrate, Thiruvananthapuram has appointed an Advocate Commissioner to take physical possession of the scheduled property. There will be a further direction to the Station House Officer of the Police Station in which the property situated, to give necessary assistance to the Advocate Commissioner. 10. Writ petitioner is stated to be residing in the subject property with the support of her son. Before the writ court, she has also conceded to the Bank to proceed against 6.10 acres of property in Re-Sy.No.221/12 of Maanikal Village, Nedumangadu Taluk, which according to her is more than sufficient to wipe off the liability. Thus, prima facie finding that the writ petitioner is entitled to an interim order against dispossession, the proceedings of the Magistrate was stayed on condition that an amount of Rs.10 lakhs will be deposited **W.A.No.348 of 2022** **6** by the petitioner on or before 15.03.2022, which is stated to have been already paid. 11. Going through the impugned order, it could be deduced that it is only as an interim measure, the order was passed. The Bank can proceed for the time being only as against 6.10 acres of property stated supra. On going through paragraph 5 of the order it is clear that the Bank is permitted to proceed for the time being, only against 6.10 acres of property. From the above, it could be seen that the interim order impugned before us has not attained the character of a final order in an interlocutory application, thus enabling the appellant to file a writ appeal under Section 5 of the Kerala High Court Act. 12. The question with respect to the right to prefer an appeal from an interim order was considered by a Larger Bench of this court in **K.S.Das v. State of Kerala** reported in 1992 KHC 366=1992 (2) KLT 358 and after assimilating the legal circumstances under section 5(1) of the Kerala High Court Act, 1958, the majority view is that an appeal is **W.A.No.348 of 2022** **7** maintainable against an interlocutory order provided it is a final order in the miscellaneous petitions in the sense that it is not an ad interim order, if the order substantially affects or touches upon substantial rights and liabilities of the parties or are matters of moment or matters which would cause real legal prejudice to the parties, even though the parent original proceedings is alive. 13. The said judgment was followed recently by a Division Bench of this court in **Thomas P.T. and Another v. Bijo Thomas and Others** reported in 2021 (6) KHC 279 and held as follows at paragraphs 10 and 11: “10. Reverting to the facts, a reading of the impugned order would show that such an ad interim order was passed in the matter as the learned Judge found it necessary to pass such an order to protect the interest of the petitioner in the writ petition. An order of this nature, according to us, cannot be understood, at any rate, as conclusive as to any matter, main or subordinate. The same cannot also be understood to be one intended to be in force until the main dispute is decided. Orders of this nature can only be understood as one intended to be in force until varied or modified. Merely for the reason that the learned Judge has extended the impugned order after the appellants entered appearance and filed counter affidavit, it cannot be said to be one intended to be in force until the main dispute is decided. In other words, the character of the ad interim order would continue to be the same until an adjudication is made by the Court, at least for the interlocutory purpose, irrespective of the fact as to whether the opposite side had entered appearance. If that be so, according to us, such **W.A.No.348 of 2022** **8** orders cannot be impugned in an appeal under Section 5(i) of the Act, for if appeals against such orders are entertained, the appellate court would be usurping the original jurisdiction of this Court under Article 226 of the Constitution. 11. The contention that K.S.Das does not preclude an appeal against an ad interim order, if the same is contrary to law or perverse and causes serious prejudice to the parties, was advanced by the learned counsel for the appellants, placing reliance on the second paragraph of the majority opinion in the said decision, wherein it has been held that normally, discretionary orders are not interfered with unless the impugned orders are without jurisdiction, contrary to law, or perverse, and they also cause serious prejudice to the parties in such a manner that it might be difficult to restore the status quo ante or grant adequate compensation. A close reading of the majority opinion in K.S.Das, especially the first sentence in the second paragraph namely “But this does not mean that the Division Bench hearing the appeal against such 'orders' will have to admit the appeal or have to modify the impugned order or set it aside in every case” would show beyond doubt that the said opinion deals with the manner in which an appeal against an intermediate order is to be dealt with. In other words, the statement in the second paragraph of the majority opinion in K.S.Das that discretionary orders are not normally interfered with unless they are without jurisdiction, contrary to law, or perverse, and cause serious prejudice to the parties, cannot be understood as one permitting an appeal to be preferred against an ad interim order if it is without jurisdiction, contrary to law, or perverse, and cause serious prejudice to the parties, for such an understanding would run counter to the unambiguous statement in the first paragraph of the majority opinion that an appeal will not lie against an ad interim order, even if it falls within the category of 'intermediate orders' in terms of the decision of the Apex Court in Madhu Limaye.” 14. The judgment of the Larger Bench in **K.S.Das** (supra) and the Division Bench in **Thomas P.T.** (supra) was followed by us in judgment in W.A.No.149 of 2022 dated 7.2.2022. **9** ## **W.A.No.348 of 2022** 15. In the light of the above discussion and following the judgment in W.A.No.149 of 2022, we are not inclined to interfere with the impugned interim order. Writ appeal is, therefore, dismissed. Appellant is at liberty to approach the writ court for early disposal, if so advised. Pending interlocutory applications, if any, shall stand closed. Sd/- **S.Manikumar Chief Justice** Sd/- **Shaji P.Chaly Judge** ## **vpv** //true copy// P.A. to Judge