Federal Bank Limited v. State of Kerala and Others

## `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` WEDNESDAY, THE 12[TH] DAY OF JULY 2023 / 21ST ASHADHA, 1945 ``` ## `WP(C) NO. 33136 OF 2022` ## `PETITIONERS:` ``` 1THE FEDERAL BANK LIMITED, AGED 42 YEARS HEAD OFFICE AT ALUVA, BRANCH AT NADAKKAVU, KOZHIKODE, REPRESENTED BY THE ASSOCIATE VICE PRESIDENT OF LCRD KOZHIKODE DIVISION, ARAYADATHUPALAM, KOZHIKODE, SHIBJU.R., PIN - 673001 2KARTHIK.M.R., S/O RAJAMANIKYAM, AGED 40 YEARS 18/1261 KARTHIK NIVAS, P.O. CHALAPPURAM, KOZHIKODE, PIN - 673002 BY ADVS. MOHAN JACOB GEORGE A.ANTONY MOHAN JACOB GEORGE P.V.PARVATHY (P-41) REENA THOMAS NIGI GEORGE ``` ## `RESPONDENTS:` ``` 1STATE OF KERALA, REPRESENTED BY SECRETARY, HOME DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM, PIN - 691001 2COMMISSIONER OF POLICE, KOZHIKODE CITY, KOZHIKODE, PIN - 673001 3STATION HOUSE OFFICER, ELATHUR POLICE STATION KOZHIKODE, PIN - 673303 4GIREESHKUMAR M.V. AGED 51 YEARS S/O CHERUKAT GANGADHARA MENON, KOZHIKAL THAZHATH, EDAKAD-P.O., PALAKADA ROAD, PUTHIYANGADI, KOZHIKODE, PIN - 673017 BY ADVS. SRI. SREEJITH V S, GOVERNMENT PLEADER SRI. TOM K.THOMAS THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 12.07.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` WPC No.33136 of 2022 ``` ``` 2 ``` ## C.S.DIAS, J. ``` ------------------------- ``` ## W.P.(C.) No.33136 of 2022 `-------------------------` Dated this the 12[th] day of July, 2023 ## JUDGMENT The writ petition is filed, interalia, to direct the respondents 2 and 3 to forthwith take action against the fourth respondent and his people and deliver back the secured asset to the first respondent bank pursuant to Ext.P1 order and Ext.P2 Commission Report. 2. The brief relevant facts are: the first petitioner is the banking Company and the second petitioner is the auction purchaser of the property in question in the writ petition. The petitioners assert that the fourth respondent and one Kanakadas had availed a housing loan from the first petitioner bank by ``` WPC No.33136 of 2022 ``` ``` 3 ``` creating an equitable mortgage in respect of fourth respondent’s property and building. The borrowers had defaulted in repayment of the loan, which led to the first petitioner initiating proceedings under the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act (in short, ‘Act’) by filing M.C. No.253/2018 before the Chief Judicial Magistrate Court, Kozhikode. By Ext.P1 order, the learned Magistrate appointed an Advocate Commissioner and the third respondent - Station House Officer, Elathur Police Station - was directed to render assistance to the Advocate necessary Commissioner to take possession of the secured asset. Pursuant to the said order, the Advocate Commissioner, by Ext.P2 report, handed over the vacant possession of the secured asset to ``` WPC No.33136 of 2022 ``` ``` 4 ``` the first petitioner. The learned Magistrate closed the proceedings as evidenced by Ext.P3 proceedings. Subsequently, when the officials of the petitioner visited the secured asset, they found the fourth respondent and his men have illegally trespassed into the secured asset and are in possession of the property. Immediately, the first petitioner preferred Ext.P4 complaint before the third respondent, to remove the fourth respondent and his men from the property. However, the complaint has not been acted upon by the third respondent. The third respondent is duty bound to remove the fourth respondent from the secured asset under of the Kerala Police Act, 2011. In an identical situation, by Ext.P5 judgment, this Court has directed the police to restore back possession of the secured asset therein, to the bank. The ``` WPC No.33136 of 2022 ``` ``` 5 ``` petitioners are entitled for the benefit of the said judgment. Hence, the writ petition. 3. Heard; Sri.Mohan Jacob George, the learned Counsel appearing for the petitioners and Sri.Sreejith V.S., the learned Government Pleader appearing for the respondents 1 to 3. Although notice has been served on the fourth respondent, there is no appearance for them. 4. Sri.Mohan Jacob George, reiterated the assertions in the writ petition. He placed reliance on the Division Bench decisions of this Court in Dewan Housing Finance Corporation Ltd. v. Superintendent of Police, Malappuram and others [2018 (3) KHC 48] and Federal Bank Ltd v. Thahira and others [2016 KHC 773] to canvas the position that the police has the duty to restore possession of the secured asset, which has been handed over to the bank ``` WPC No.33136 of 2022 ``` ``` 6 ``` pursuant to the orders passed by the competent Magistrate under the provisions of the Act. 5. Having considered the pleadings and materials on record and taking note of the fact that the possession of the secured asset was taken possession by the Advocate Commissioner, as per Ext.P2 report, and handed over to the first petitioner and the petitioners uncontroverted assertion that the fourth respondent has illegally trespassed into the property and the first petitioner has submitted Ext.P4 complaint before the third respondent, which has not been acted upon, I deem it appropriate to allow the writ petition. Resultantly, I allow the writ petition as follows: - (i) The third respondent is directed to - consider Ext.P4 complaint filed by the first ``` WPC No.33136 of 2022 ``` ``` 7 ``` in accordance with law and as petitioner, expeditiously as possible, at any rate, within a period of one month from the date of receipt of a certified copy of this judgment, after affording the petitioner an opportunity of being heard. Sd/C. S. DIAS JUDGE SKP/12-07 ``` WPC No.33136 of 2022 ``` ``` 8 ``` ## `APPENDIX OF WP(C) 33136/2022` |`PETITIONERS’ EXHIBITS:`|| |---|---| |`EXHIBIT P1`|`TRUE COPY OF THE ORDER DATED 02.08.2018 OF THE`| ||`CJM COURT, KOZHIKODE IN MC 253/2018`| |`EXHIBIT P2`|`TRUE COPY OF COMMISSION REPORT DATED 24-01-2020`| ||`FILED BY THE ADVOCATE COMMISSIONER IN MC`| ||`253/2018 OF CJM COURT, KOZHIKODE.`| |`EXHIBIT P3`|`TRUE COPY OF ORDER DATED 24-01-2020 IN THE MC`| ||`253/2018 OF CJM COURT, KOZHIKODE.`| |`EXHIBIT P4`|`TRUE COPY OF COMPLAINT DATED 22-04-2022`| ||`SUBMITTED BY THE 1ST PETITIONER BEFORE THE 3RD`| ||`RESPONDENT.`| |`EXHIBIT P5`|`TRUE COPY OF JUDGMENT DATED 18-07-2016 IN W.P.`| ||`(C)NO.21715 OF 2016 OF THIS HON'BLE COURT.`| |`EXHIBIT P6`|`TRUE COPY OF SALE NOTICE DATED 14-02-2020 SENT`| ||`TO THE 4TH RESPONDENT AND KANAKADAS E.K.BY 1ST`| ||`PETITIONER.`| |`EXHIBIT P7`|`TRUE COPY OF POSTAL A/D CARD SIGNED BY 4TH`| ||`RESPONDENT AND KANAKADAS IN RECEIPT OF EXT.P6`| ||`SALE NOTICE.`| |`EXHIBIT P8`|`TRUE COPY OF SALE NOTICE DATED 20-03-2021 SENT`| ||`TO THE 4TH RESPONDENT AND KANAKADAS E.K.BY 1ST`| ||`PETITIONER.`| |`EXHIBIT P9`|`TRUE COPY OF POSTAL A/D CARD SIGNED BY 4TH`| ||`RESPONDENT AND KANAKADAS E.K. IN RECEIPT OF`| ||`EXT.P8 SALE NOTICE.`| |`EXHIBIT P10`|`TRUE COPY OF POSTAL RECEIPT EVIDENCING SENDING`| ||`OF EXT.P8 SALE NOTICE TO 4TH RESPONDENT AND`| ||`KANAKADAS E.K.`| |`EXHIBIT P11`|`TRUE COPY OF VALUATION REPORT DATED 21-01-2020`| ||`WITH RESPECT TO THE SECURED PROPERTY PREPARED`| ||`BY APPROVED VALUER.`| |`EXHIBIT P12`|`TRUE COPY OF UNDERTAKING DATED 29-11-2019`| ||`SUBMITTED BY THE 4TH RESPONDENT BEFORE THE 1ST`| ||`PETITIONER.`| ``` RESPONDENTS' EXHIBITS:NIL ``` ``` TRUE COPY ``` ## `P.A. TO JUDGE`