Dr. Suman J vs The Manager, Devan Housing and Finance Corporation Ltd and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN** **MONDAY, THE 26TH DAY OF AUGUST 2019 / 4TH BHADRA, 1941** ## **WP(C).No.13420 OF 2019(B)** ## **PETITIONER/S:** **DR.SUMAN.J, AGED 50 YEARS W/O. BAIJU, RESIDING AT FLAT NO.10, A-WING, HOUSING BOARD COLONY, PTP NAGAR P.O, VATTIYOORKAVU VILLAGE, THIRUVANANTHAPURAM DISTRICT, PIN-695038.** **BY ADVS. SRI.J.R.PREM NAVAZ SHRI.SUMEEN S.** ## **RESPONDENT/S:** **1 THE MANAGER, DEVAN HOUSING AND FINANCE CORPORATION LTD, E-CODE-1008841 DEVAN HOUSING FINANCE CORPORATION LTD, FIRST FLOOR, KMM BUILDING, PALARIVATTOM, COCHIN, PIN-682025. 2 THE AUTHORIZED OFFICER, E-CODE-1008841, DEVAN HOUSING AND FINANCE CORPORATION LTD, FIRST FLOOR, KMM BUILDING, PALARIVATTAM, COCHIN, PIN-682025. 3 BAIJU.M, AGED 52 YEARS, S/O. THUTHUNESAN, RESIDING AT FLAT NO.10, A-WING, HOUSING BOARD COLONY, PTP NAGAR P.O, VATTIYOORKAVU VILLAGE, THIRUVANANTHAPURAM DISTRICT, PIN-695038, 4 SUNIL SHAHEEDU KUTTY, AGED 45 YEARS, S/O. SHAHEEDUKUTTY, P O BOX NO.9454, JEDDAH 21413 KSA SAUDI ARABIA, MOBILE 0966126351515. 5 SANTOSH KHAN SAHEEDU, AGED 49 YEARS, S/O. SHAHEEDUKUTTY, RESIDING AT T.C.15/688(6), PATHMARG, PALATTUKONAM ROAD, THIRUVANANTHAPURAM DISTRICT, PIN-605002, MOBILE 9847278785.** **BY ADVS. SRI.DENU JOSEPH R2 BY ADV. SMT.NEETHU REGHUKUMAR** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 26.08.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WPC 13420/19 2 ## **JUDGMENT** The petitioner, who is stated to be the estranged wife of the 3[rd] respondent, has filed this Writ Petition impugning the steps taken by 1[st] and 2[nd] respondents-Financial Institution under the provisions of the Securitisation and Reconstruction of Financial Assets and Enforcement of Securities Interest Act ('the SARFAESI Act' for brevity) against a property, which she claims to be in her possession. 2. According to the petitioner, the property in question was purchased by her husband utilising her gold ornaments but that it was registered in his own name. She says that when the relationship between them turned sour, she was constrained to approach the competent Court and to obtain Ext.P1 order under the provisions of the Domestic Violence Act (DV Act for short), whereby the 3[rd] respondent was injuncted from alienating or WPC 13420/19 3 disposing of the property in question. She adds that even though steps were taken by her to have the said order communicated to the concerned Sub Registrar's Officer, as is clear from Ext.P2 order of the Magistrate's Court, Nedumangad, for some reason, the same was communicated much later; and that this delay was used by her husband to sell the property to respondents 4 and 5, by availing a loan from respondents 1 and 2-Financial Institution. 3. The petitioner alleges that the entire transaction with respect to the property in question was done by her husband in active collaboration with respondents 4 and 5 and the Financial Institution so as to defeat her rights over it and to render the proceedings before the Magistrate's Court under the DV Act infructuous. She, therefore, prays that respondents 1 and 2-Financial Institution be directed not to pursue any further action WPC 13420/19 4 against the said property under the SARFAESI Act. 4. In answer to the afore submissions, the learned Standing Counsel appearing for respondents 1 and 2-Financial Institution, submits that at the time when they accepted the property in mortgage from respondents 4 and 5, who are the purchasers of the same from the 3[rd] respondent, the relevant documents and materials did not indicate any injunction having been issued by a Court against the 3[rd] respondent, restraining him from selling the property, as is evident from the entries in the encumbrance certificate. He adds that in any event of the matter, the petitioner's remedy is not against respondents 1 and 2 but to proceed against the 3[rd] respondent, who appears to have violated the order of injunction particularly because, as is clear from Ext.P1, the orders are only against him and not against anyone WPC 13420/19 5 else. He, therefore, prays that this Writ Petition be dismissed; however, adding that, even assuming that, the petitioner has any case, the judgment of this Court in **Darly Shajan v. Shajan Thomas [2016(3) KLT 844]** would stand against her, since this Court has declared that the provisions of the SARFAESI Act has primacy over the DV Act. 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 WPC 13420/19 6 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 WPC 13420/19 7 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 3[rd] respondent and not by approaching this Court through a Writ Petition under Article 226 of the Constitution of India. After I dictated this judgment, the learned WPC 13420/19 8 counsel for the petitioner-Sri.J.R.Prem Navaz, submitted that the respondent-Financial 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 WPC 13420/19 9 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. **Sd/-** ## **DEVAN RAMACHANDRAN** RR **JUDGE** WPC 13420/19 10 ## APPENDIX ## PETITIONER'S/S EXHIBITS: EXHIBIT P1 THE TRUE COPY OF THE ORDER DATED 04.06.2016 IN CMP NO.7289 OF 2016 IN M.C.NO.63 OF 2016 PASSED BY THE JUDICIAL MAGISTRATE OF FIRST FLASSII, NEDUMANGADU, THIRUVANANTHAPURAM DISTRICT. EXHIBIT P2 THE TRUE COPY OF THE ORDER DATED 27.05.2017 IN CMP NO.5145 OF 2017 IN MC NO.63 OF 2016 PASSED BY THE LEARNED JUDICIAL MAGISTRATE OF FIRST CLASS-II, NEDUMANGADU, THIRUVANANTHAPURAM DISTRICT. EXHIBIT P3 THE TRUE COPY OF THE NOTICE DATED 15.06.2018 UNDER SECTION13(2) OF THE SARFAESI ACT FOUND AFFIXED ON THE OUTER DOOR OF THE PETITIONER SHARED HOUSEHOLD. EXHIBIT P4 THE TRUE COPY OF THE OBJECTION TO EXHIBIT-P3 FILED BY THE PETITIONER. EXHIBIT P5 THE REPLY TO THE OBJECTION FILED BY THE PETITIONER BY THE 2ND RESPONDENT. EXHIBIT P6 THE TRUE COPY OF THE NOTICE AFFIXED ON THE OUTER DOOR OF THE PETITIONERS RESIDENCE DATED 22.03.2019.