Dr. Sumam J v. Devan Housing Finance Corporation Ltd. & Others

W. A. No. 52 of 2020 -1- ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR** **&** **THE HONOURABLE MR. JUSTICE SHAJI P.CHALY** **FRIDAY, THE 7[TH] DAY OF OCTOBER 2022 / 15TH ASWINA, 1944** **WA NO. 52 OF 2020** **AGAINST THE JUDGMENT IN WP(C) 13420/2019 OF HIGH COURT OF** ## **KERALA** ## **APPELLANT/S:** **DR.SUMAM.J AGED 50 YEARS** **FLAT NO.10, A.WING, KERALA STATE HOUSING BOARD COLONY, PTP NAGAR POST, THIRUVANANTHAPURAM, (WORKING AS THE MEDICAL OFFICER IN AYUSH PRIMARY HEALTH CENTRE, SREEKARYAM, THIRUVANANTHAURAM).** **BY ADV B.KRISHNA MANI** ## **N. V. SANDHYA** ## **RESPONDENT/S:** - **1 THE MANAGER DEVAN HOUSING FINANCE CORPORATION LTD., E-CODE1008841 DEVAN HOUSING FINANCE CORPORATION LTD., FIRST FLOOR, KMM BUILDING, PALARIVATTOM, COCHIN682025** - **2 THE AUTHORISED OFFICER** - **DEVAN HOUSING FINANCE CORPORATION LTD., E-CODE1008841 DEVAN HOUSING FINANCE CORPORATION LTD., FIRST FLOOR, KMM BUILDING, PALARIVATTOM, COCHIN682025** - **3 BAIJU.M AGED 52 YEARS** **RESIDING AT FLAT NO.10, A -WING HOUSING BOARD COLONY, PTP NAGAR.P.O, VATTIYOORKAVU VILLAGE, THIRUVANANTHAPURAM DISTRICT-695038** W. A. No. 52 of 2020 -2- **4 SUNIL SHAJEEDUKUTTY AGED 45 YEARS** **S/O.SHAHEEDUKUTTY, P.O.BOX NO.9454, JEDDAH 21413 KSA SAUDI ARABIA** - **5 SANTHOSHKHAN SAHEEDU AGED 49 YEARS** **S/O.SHABEEDUKUTTY, RESIDING AT T.C.15/688(6), PATHMARG, PALATTUKONAM ROAD, THIRUVANANTHAPURAM DISTRICT-695002** **THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON** - **07.10.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W. A. No. 52 of 2020 -3- ## **J U D G M E N T** ## S. Manikumar, C. J. Before the writ court, appellant/petitioner has sought for the following reliefs:- “(i) To declare that Section 17 of the Protection of Women from Domestic Violence Act 2005 will prevail over the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act 2002 in view of the non obstante clause in Section 17 of the Protection of Women from Domestic Violence Act 2005 and other facts. (ii) The very sanctioning of disbursing the loan by the 1[st] respondent to the 4[th] respondent for purchasing the secured asset belongs to the 3[rd] respondent is void-ab-initio in view of ExhibitP1 Order.” 2. Brief facts leading to the filing of W.P.(C) are as under: a) According to the petitioner / appellant, she is the wife of Mr. Baiju M., the 3[rd] respondent, and their marriage was solemnized on 04.03.2010. She is in possession of the secured asset described in Ext. P5 possession notice dated 19.10.2018, authorized by the learned Judicial Magistrate of First Class - II, Nedumangad, by Ext. P1 order in C. M. P. No. 7289 of 2016 dated 04.06.2016. W. A. No. 52 of 2020 -4- b) Appellant has submitted that Mr. Sunil Shaheedu Kutty, the 4[th] respondent, had obtained a purchase loan for purchase of the secured asset from Mr. Baiju M., the 3[rd] respondent, at a time when Ext. P1 order was in force, by fraud, conspiring with the officials of Devan Housing and Finance Corporation Ltd., the 1[st] respondent, and defaulted EMI with the intention to evict the appellant from her shared household. c) Appellant has further submitted that she is confronted with Ext. P5 order passed by the Authorized Officer, Devan Housing and Finance Corporation Ltd., the 2[nd] respondent, which is not sustainable in view of Section 17 of the Protection of Women from Domestic Violence Act, 2005, and also in view of Ext. P1 order in C. M. P. No. 7289 of 2016 dated 04.06.2016, passed by the learned Judicial Magistrate of First Class - II, Nedumangad, Thiruvananthapuram District. If the Authorized Officer, the 2[nd] respondent, is permitted to proceed with Ext. P5 order, appellant would be put to irreparable injury, loss and hardships. 3. Adverting to the rival submissions, writ court, by judgment in W. P. (C) No. 13420 of 2019 dated 26.08.2019, declined to grant the reliefs sought for. W. A. No. 52 of 2020 -5- ## 4. Relevant paragraphs of the impugned judgment are ## reproduced hereunder:- “5. I have considered the afore submissions with some amount of care, since I am aware that the petitioner's claims are founded on the protective provisions of the DV Act. Normally, I would have been loathe to make any orders that would, in any manner, impinge the rights of the petitioner; but unfortunately, in this case, the factual situation is not in her favour. I say this because she has obtained an injunction against her husband-the 3[rd] respondent but unfortunately, whatever be the reason, the said order had not been informed to the Sub Registrar's Office in time. This enabled the 3[rd] respondent to make use of the opportunity and sell the property to respondents 4 and 5 who, with or without information of such an order of injunction, approached the Bank for a Purchase Loan and the Bank granted it on the strength of an equitable mortgage created by them over the property in question. 6. Obviously, therefore, the accusation of the petitioner, primarily, can only be against the 3[rd] respondent and it may then spread over to respondents 4 and 5, as also to respondents 1 and 2, but only if she is able to establish, through cogent and reliable evidence, that they were fully aware of the order of injunction at the time when the transaction was completed. These are issues that the petitioner must raise and pursue before the appropriate Forum, if she is so interested, but she is not justified in approaching this Court through this Writ Petition seeking the reliefs, as have been sought for by her herein. 7. My opinion as afore is bolstered by the fact that the petitioner herself then agrees that she has challenged the sale executed by the 3[rd] respondent in favour of respondents 4 and 5 before the Magistrate's Court and that she is awaiting orders thereon. Taking note of the afore submissions and in view of my observations above, I close this Writ Petition without entering into the merits of the contentions of any of the parties; however, holding that remedy of the petitioner is to approach the alternative Forums suitably against the sale now conducted by the 3rd respondent and not by approaching this Court through a Writ Petition under Article 226 of the Constitution of India. W. A. No. 52 of 2020 -6- After I dictated this judgment, the learned counsel for the petitioner-Sri.J.R.Prem Navaz, submitted that the respondentFinancial Institution has now taken physical possession of the property in question under the SARFAESI Act and that even his client's personal belongings are inside. He, therefore, prays that the Financial Institution be directed to open the house for his client, so as to enable her to remove the same. The learned Standing Counsel for the Financial Institution submits that his client has no objection in keeping the premises open for the petitioner to remove her articles, but that they fear that the 3[rd] respondent may make conflicting claims over the same. He then submits that the Financial Institution will act in terms of the orders to be issued by the Magistrate's Court. I find some force in the afore submissions made on behalf of the Financial Institution and therefore, leave liberty to the petitioner to approach the competent Magistrate's Court for this purpose, so that the said Court can issue appropriate orders under the DV Act.” ## 5. Being aggrieved, instant writ appeal is filed. 6. Heard Ms. Dhanuja, learned counsel appearing for the appellant, and perused the pleadings and material on record. ## 7. Section 17 of the Protection of Women from Domestic Violence Act, 2005, deals with right to reside in a shared household, and the same is reproduced:- “ **17. Right to reside in a shared household** .- (1) Notwithstanding anything contained in any other law for the time being in force, every woman in a domestic relationship shall have the right to reside in the shared household, whether or not she has any right, title or beneficial interest in the same. W. A. No. 52 of 2020 -7- (2) The aggrieved person shall not be evicted or excluded from the shared household or any part of it by the respondent save in accordance with the procedure established by law.” 8. On the facts and circumstances of the case, it could be deduced that the subject property, where the appellant has obtained an order under the provision of the Protection of Women from Domestic Violence Act, 2005, has been mortgaged with Devan Housing and Finance Corporation Ltd., Kochi, the 1[st] respondent, and that proceedings for realization of the loan amount have been taken, which ended in sale of the property. At that stage, appellant has approached the writ court. 9. Though Section 17 of the Protection of Women from Domestic Violence Act, 2005, has been pressed upon, and prayed for a declaration as stated supra, the same cannot be granted in view of the overriding provision contained in the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002, which reads as under:- ## “ **35. The provisions of this Act to override other** **laws.** - The provisions of this Act shall have 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.” W. A. No. 52 of 2020 -8- ## 10. As regards the interpretation of notwithstanding provision in an Act, we deem it fit to consider a few decisions:- ## (i) In **State of West Bengal v. Union of India** reported in [1964] 1 SCR 371, it is observed as under: "The Court must ascertain the intention of the legislature by directing its attention not merely to the clauses to be construed but to the entire statute; it must compare the clause with the other parts of the law and the setting in which the clause to be interpreted occurs." (ii) In **Union of India v. I.C. Lala** reported in AIR 1973 SC 2204, the Hon'ble Supreme Court held that non obstante clause does not mean that the whole of the said provision of law has to be made applicable or the whole of the other law has to be made inapplicable. It is the duty of the Court to avoid the conflict and construe the provisions to that they are harmonious. (iii) In **Union of India v. G.M. Kokil [** AIR 1984 SC 1022], the Hon'ble Supreme Court, at Paragraph 10, held as under: "It is well-known that a non-obstante clause is a legislative device which is usually employed to give overriding effect to certain provision over some contrary provision that may be found either in the same enactment or some other enactment, that is to say, to avoid the operation and effect of all contrary provisions." (iv) In **Chandavarkar Sita Ratna Rao v. Ashalata S. Guram** [(1986) 4 SCC 447], the Hon'ble Apex Court held as under: "67. A clause beginning with the expression "notwithstanding anything contained in this Act or W. A. No. 52 of 2020 -9- in some particular provision in the Act or in some particular Act or in any law for the time being in force, or in any contract" is more often than not appended to a section in the beginning with a view to give the enacting part of the section in case of conflict an overriding effect over the provision of the Act or the contract mentioned in the nonobstante clause. It is equivalent to saying that in spite of the provision of the Act or any other Act mentioned in the non-obstante clause or any contract or document mentioned the enactment following it will have its full operation or that the provisions embraced in the non-obstante clause would not be an impediment for an operation of the enactment. See in this connection the observations of this Court in The South India Corporation (P) Ltd., v. The Secretary, Board of Revenue, Trivandrum & Anr., AIR 1964 SC 207 at 215[1964] 4 SCR 280." (v) In **Vishin N. Kanchandani v. Vidya Lachmandas Khanchandani** reported in AIR 2000 SC 2747, at Paragraph 11, the Hon'ble Supreme Court held as under: "There is no doubt that by non-obstante clause the Legislature devices means which are usually applied to give overriding effect to certain provisions over some contrary provisions that may be found either in the same enactment or some other statute. In other words such a clause is used to avoid the operation and effect of all contrary provisions. The phrase is equivalent to showing that the Act shall be no impediment to measure intended. To attract the applicability of the phrase, the whole of the section, the scheme of the Act and the objects and reasons for which such an enactment is made has to be kept in mind." (vi) In **ICICI Bank Ltd., v. SIDCO Leathers Ltd.,** reported in (2006) 10 SCC 452, the Hon'ble Supreme Court, at Paragraphs 34, 38, 46 and 49, held as follows: W. A. No. 52 of 2020 -10- "34. Section 529-A of the Companies Act no doubt contains a non-obstante clause but in construing the provisions thereof, it is necessary to determine the purport and object for which the same was enacted. ...... 36. The non-obstante nature of a provision although may be of wide amplitude, the interpretative process thereof must be kept confined to the legislative policy ....... 37. A non-obstante clause must be given effect to, to the extent the Parliament intended and not beyond the same. 38. Section 529-A of the Companies Act does not ex facie contain a provision (on the aspect of priority) amongst the secured creditors and, hence, it would not be proper to read there into things, which the Parliament did not comprehend." (vii) The Hon'ble Supreme Court in **Central Bank of India v. State of Kerala** reported in (2009) 4 SCC 94, the Hon'ble Supreme Court held as follows: “103. A non obstante clause is generally incorporated in a statute to give overriding effect to a particular section or the statute as a whole. While interpreting non obstante clause, the Court is required to find out the extent to which the legislature intended to do so and the context in which the non obstante clause is used. This rule of interpretation has been applied in several decisions. 104. In _State of W.B. v. Union of India [AIR 1963 SC 1241],_ it was observed that: “68. … The court must ascertain the intention of the legislature by directing its attention not merely to the clauses to be construed but to the entire statute; it must compare the clause with the other parts of the law, and the setting in which the clause to be interpreted occurs.” W. A. No. 52 of 2020 -11- 105. “16. … In **Madhav Rao Jivaji Rao Scindia v. Union of India** [(1971) 1 SCC 85] (SCC at p. 139) Hidayatullah, C.J. observed that the non obstante clause is no doubt a very potent clause intended to exclude every consideration arising from other provisions of the same statute or other statute but ‘for that reason alone we must determine the scope’ of that provision strictly. When the section containing the said clause does not refer to any particular provisions which it intends to override but refers to the provisions of the statute generally, it is not permissible to hold that it excludes the whole Act and stands all alone by itself. ‘A search has, therefore, to be made with a view to determining which provision answers the description and which does not.’ ” [Ed. : As observed in A.G. Varadarajulu v. State of T.N., (1998) 4 SCC 231, p. 236, para 16.] 106. In **R.S. Raghunath v. State of Karnataka** [(1992) 1 SCC 335], a three-Judge Bench referred to the earlier judgments in Aswini Kumar Ghose v. Arabinda Bose [AIR 1952 SC 369], Dominion of India v. Shrinbai A. Irani [AIR 1954 SC 596], Union of India v. G.M. Kokil [1984 Supp SCC 196], Chandavarkar Sita Ratna Rao v. Ashalata S. Guram [(1986) 4 SCC 447] and observed : (R.S. Raghunath case [(1992) 1 SCC 335: 1992 SCC (L&S) 286: (1992) 19 ATC 507], SCC pp. 346-47, para 11) “11. … the non obstante clause is appended to a provision with a view to give the enacting part of the provision an overriding effect in case of a conflict. But the non obstante clause need not necessarily and always be coextensive with the operative part so as to have the effect of cutting down the clear terms of an enactment and if the words of the enactment are clear and are capable of a clear interpretation on a plain and grammatical construction of the words the non obstante clause cannot cut down the W. A. No. 52 of 2020 -12- construction and restrict the scope of its operation. In such cases the non obstante clause has to be read as clarifying the whole position and must be understood to have been incorporated in the enactment by the legislature by way of abundant caution and not by way of limiting the ambit and scope of the Special Rules.” 107. In **A.G. Varadarajulu v. State of T.N.** [(1998) 4 SCC 231] the Hon'ble Apex Court relied on Aswini Kumar Ghose case [AIR 1952 SC 369]. The Court while interpreting non obstante clause contained in Section 21-A of the Tamil Nadu Land Reforms (Fixation of Ceiling on Land) Act, 1961 held: (Varadarajulu case [(1998) 4 SCC 231], SCC p. 236, para 16) “16. It is well settled that while dealing with a non obstante clause under which the legislature wants to give overriding effect to a section, the court must try to find out the extent to which the legislature had intended to give one provision overriding effect over another provision. Such intention of the legislature in this behalf is to be gathered from the enacting part of the section. In Aswini Kumar Ghose v. Arabinda Bose [AIR 1952 SC 369] Patanjali Sastri, J. observed: (AIR p. 377, para 27) ‘27. … The enacting part of a statute must, where it is clear, be taken to control the non obstante clause where both cannot be read harmoniously;” 11. In the light of the statutory provision, Section 35 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002, and giving due consideration to the abovesaid decisions and also the intention of the SARFAESI Act, W. A. No. 52 of 2020 -13- 2002, declaration, as sought for by the petitioner/appellant and the consequential prayer, cannot be granted. 12. Writ court has considered the case on merits and passed the judgment impugned, which does not require any interference in this intra court appeal. Accordingly, writ appeal is dismissed. **Sd/S. MANIKUMAR CHIEF JUSTICE** **Sd/SHAJI P. CHALY JUDGE** Eb ///TRUE COPY/// P. A. TO JUDGE