P. Abdul v. Authorized Officer, The Federal Bank Ltd., Palarivattom Branch; The Federal Bank Ltd., Palarivattom Branch, Rep. by Chief Manager; Saidu Haji; Usman; M/S. Amme Narayana Traders; Manoj Karthik; Devi Menon

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE B.KEMAL PASHA** **THURSDAY, THE 14TH DAY OF JULY 2016/23RD ASHADHA, 1938** **OP(Crl.).No. 375 of 2016 (Q) -----------------------------** ## **CRL.MP 1380/2015 OF CHIEF JUDICIAL MAGISTRATE COURT, MANJERI** ## **----------------** ## **PETITIONER(S): -------------** **P.ABDU, AGED 51 YEARS, S/O. SAIDU HAJI, PWD CONTRACTOR, POOZHITHARA HOUSE, KLARI AMSOM DESOM, POST-EDARICODE, PIN - 676 101, TIRUR TALUK.** **BY ADVS.SRI.BABU KARUKAPADATH SMT.M.A.VAHEEDA BABU SRI.K.M.FAIZAL SRI.P.U.VINOD KUMAR SRI.MITHUN BABY JOHN SRI.J.RAMKUMAR SRI.N.SATHEESH KUMAR(NEMMARA) SMT.AMRIN FATHIMA** **RESPONDENT(S):** **--------------** **1. THE AUTHORIZED OFFICER, THE FEDERAL BANK LTD, PALARIVATTOM BRANCH 35/37A, N.H.ROAD, PALARIVATTOM, ERNAKULAM, PIN - 682 022.** **2. THE FEDERAL BANK LTD, PALARIVATTOM BRANCH, REP. BY CHIEF MANAGER, 35/37A, N.H.ROAD, PALARIVATTOM, ERNAKULAM - 682 022.** **3. SAIDU HAJI, S/O. MAMMUKUTTY HAJI, POOZHITHARA HOUSE, KLARI AMSOM DESOM, POST-EDARICODE, TIRU TALUK, MALAPPURAM DISTRICT - 676 501.** **4. USMAN,** **S/O. MAMMUKUTTY HAJI, POOZHITHARA HOUSE, KLARI AMSOM DESOM, POST EDARICODE, TIRUR TALUK, MALAPPURAM DISTRICT - 676 501.** **PJ** **....2/-** **..2..** **OP(Crl.).No. 375 of 2016 (Q) -----------------------------** **5. M/S. AMME NARAYANA TRADERS, FRANCHISEE OF NILGIRIS NO. X 107 A2/A3, BCG RESIDENCY TOWER, SEA PORT AIR PORT ROAD, OPPOSITE SEZ, KOCHI - 682 037, REP. BY ITS PARTNERS - MANOJ KARTHIK, DEVI MENON AND SAIDU HAJI.** **6. MANOJ KARTHIK, S/O. MANY T.K.MENON, NO.33, IMPERIAL GARDEN, MERIDIAN HOUSE, NEAR CHOICE SCHOOL, TRIPUNITHARA - 682 001.** **7. DEVI MENON, W/O. MANY T.K.MENON, NO.33, IMPERIAL GARDEN, MERIDIAN HOUSE, NEAR CHOICE SCHOOL, TRIPUNITHARA - 682 001.** **R1 & 2 BY ADV. SRI.A.ANTONY SMT.LEELAMMA ANTONY** **THIS OP (CRIMINAL) HAVING COME UP FOR ADMISSION ON 14-07-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **PJ** ## **OP(Crl.).No. 375 of 2016 (Q)** ## **-----------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS -----------------------** - **P1 A TRUE COPY OF THE CRL.M.P NO. 1380/2015 EXCLUDING THE DOCUMENTS CONTAINED THERIN, FILED BY THE 1ST RESPONDENT BEFORE THE HN'BLE CHIEF JUDICIAL MAGISTRATE COURT, MANJERI.** - **P2 A TRUE COPY OF CRL.M.P NO. 2099/2-15 FILED BY THE PETITIONER BEFORE THE HON'BLE CHIEF JUDICIAL MAGISTRATE COURT, MANJERI.** - **P3 A TRUE COPY OF THE OBJECTION FILED BY THE BANK TO EXT.P2 PETITION.** - **P4 A TRUE COPY OF THE OBJECTION FILED BY OTHER RESPONDENTS TO EXT. P2 PETITION.** - **P5 A TRUE COPY OF THE PETITION CRL.M.P NO. 1430/2016 FILED BY THE PETITIONER FOR AMENDMENT PETITION.** - **P6 A TRUE COPY OF THE OBJECTIO FILED BY THE BANK TO EXT. P5 AMENDMENT PETITION.** - **P7 A TRUE COPY OF THE OBJECTION FILED BY OTHER RESPONDENTS TO EXT. P5 AMENDMENT PETITION.** - **P8 A TRUE COPY OF THE ORDER DT. 25.6.2016 IN AMENDMENT PETITION CRL.MP NO. 1430/2016 OF THE HON'BLE CHIEF JUDICIAL MAGISTRAE COURT.** - **P9 A TRUE COPY OF THE ORDER DT. 30.6.2016 IN CRL.M.P NO. 2099/2015 OF THE HON'BLE CHIEF JUDICIAL MAGISTRATE COURT.** ## **RESPONDENT(S)' EXHIBITS** ## **-----------------------** **NIL.** **/ TRUE COPY /** **P.S. TO JUDGE** **PJ** ## **[CR]** ## **B. KEMAL PASHA, J.** ````````````````````````````````````````````````````````````` O.P.(Crl.) No.375 of 2016 ````````````````````````````````````````````````````````````` _Dated this the 14[th ] day of July, 2016_ ## **J U D G M E N T** ~ ~ ~ ~ ~ ~ ~ ~ ~ Petitioner, who claims to have obtained title and possession over a piece of land through an oral gift from his father, has come up by challenging the proceedings under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 ('SARFAESI Act' for short), initiated against that particular property along with the other secured assets of the so-called 'donor'. It is the case of the petitioner that he and his father, being Muslims governed by the provisions of Muslim Law, are entitled to maintain a proper conveyance of the property through an oral gift. O.P.(Crl.).375/2016 : 2 : 2. The petitioner claims that the property in question was gifted to him by his father through an oral gift and thereafter, he put up a building in that piece of land, wherein he is residing still now. According to him, when the gift had taken effect prior to the so-called mortgage made by his father before the bank, that piece of property could not have been treated as a 'secured asset' enabling the bank to have recourse to SARFAESI proceedings against it. 3. According to the petitioner, the court below ought to have decided the said question when it was specifically raised by him before the court below prior to the passing of an order for taking possession of the property. The learned counsel for the petitioner has argued that when such a question was mooted before the court below, it was incumbent on the court below to decide the said question first, and that the observation made by the court below that the court below could not go into that question, is not well founded. O.P.(Crl.).375/2016 : 3 : 4. _Per contra,_ the learned counsel for respondents 1 and 2 has contended that the very same questions raised by the petitioner in the matter pending before the court below were taken up by the petitioner before the competent civil court twice, unsuccessfully. It is contended that the petitioner had filed OS No.154/2014 against his father before the Munsiff's Court, Tirur for an injunction simplicitor against alienation of the property. The father of the petitioner, who was the defendant contested the suit, and the same was dismissed. Thereafter, he had preferred OS No.185/2014 before the Munsiff's Court, Tirur against his father and the bank for the declaration of his title over the property and for the consequential relief of injunction. The said suit also has been dismissed for default. According to the learned counsel for respondents 1 and 2, on account of the dismissal of OS No.154/2014 and OS No.185/2014, the petitioner is estopped from forwarding such claims again in the matter. O.P.(Crl.).375/2016 : 4 : 5. Learned counsel for respondents 1 and 2 has pointed out that the father of the petitioner had specifically contended that there was no such oral gift as claimed by the petitioner. If the present stand taken by the learned counsel for the petitioner is accepted and adopted, it will be as good as permitting all the members of the Muslim community to take up the very same contention when matters relating to SARFAESI Act come up. It is true that as per Muslim law, an oral gift is valid. In case where an oral gift is there coupled with delivery of possession, it will be a valid gift, provided the parties are Muslims of sound mind, who have the capacity to contract and not otherwise disabled. At the same time, the burden to prove such a valid oral gift always be heavily on the donee, especially when the donor comes up and says that there was no such oral gift at all. In such matter, the same is a question of fact that has to be proved properly before a competent civil court. It is a fact that OS No.185/2014 was filed by the petitioner before a competent O.P.(Crl.).375/2016 : 5 : civil court against his father as well as the bank for declaration of title over the property based on the very same claim of an oral gift. The suit has been dismissed for default. According to the learned counsel for the petitioner, the petitioner is intending to file an application for getting the suit restored. 6. The main argument forwarded by the learned counsel for the petitioner is that in view of the specific bar of jurisdiction of the civil court as the one contained in Section 34 of the SARFAESI Act, the question as to whether the property involved in this case could be treated as a 'secured asset' ought to have been considered and decided by the court below in the very same proceedings. This Court had occasion to consider the said question in _**KHDFC Bank Limited and Others v. Prestige Educational Trust** [2015_ _(3) KLJ 852],_ wherein it was held in paragraphs 15 and 22 as follows:- _“15. Therefore, from a reading of Section 13(4)_ O.P.(Crl.).375/2016 : 6 : _(a), it is evident that a 'secured creditor', through the provisions of the SARFAESI Act, can take possession of the 'secured assets' of the borrower. It is evident that Section 13(4) of the SARFAESI Act does not confer any power or right on the 'secured creditor' to take possession of any assets other than the 'secured assets'. If there is any attempt to take possession of any asset other than the 'secured assets', it is ultra vires to the provisions of the SARFAESI Act._ _22. With respect, I differ with the argument of the learned counsel for the petitioners that Section 34 creates a blanket ban against the jurisdiction of the civil court to grant an injunction. As per Section 34, no injunction shall be granted by any court in respect of “any action taken or to be taken in pursuance of any power conferred by or under this Act ....” Therefore, the bar is there only when an order of injunction is attempted to be granted in respect of any action taken or to be taken in pursuance of any power conferred by or under that Act. It cannot be said that a secured creditor or his authorised officer can initiate proceedings under Section 13(2) or 13(4) of the_ O.P.(Crl.).375/2016 : 7 : _Act as against any asset other than the 'secured asset'. If a creditor is initiating action against an asset, which is not a 'secured asset', he cannot be termed as a 'secured creditor'. Over and above it, such an attempt will not be an exercise of any power conferred by or under the said Act. In such case, it cannot be said that the civil court has no power to grant an injunction.”_ 7. The wording of Section 34 has to be carefully dealt with. As per Section 34, the jurisdiction of the civil court to entertain any suit or proceeding in respect of any matter, which a Debt Recovery Tribunal or the Appellate Tribunal is empowered by or under the said Act to determine, is specifically barred. If it is not a matter to be decided by the Debt Recovery Tribunal or the Appellate Tribunal as is empowered by or under the said Act, it could not be said that the civil court has no jurisdiction to entertain such a suit. The second part of Section 34 says that no injunction shall be granted by any court or other authority in respect of any action taken or to be taken in pursuance of O.P.(Crl.).375/2016 : 8 : any power conferred by or under that Act or under the Recovery of Debts Due to Banks and Financial Institutions Act, 1993. 8. It is made clear that in suits of civil nature, which do not come within the category mentioned in Section 34 of the SARFAESI Act, it is lawful for the competent civil court to entertain an application for temporary injunction, and to pass appropriate orders on it in accordance with law based on merits. 9. In a case of the present nature, it is not easy to establish the title of the petitioner over the property based on the averment of an oral gift, especially when a so-called donor comes up and says that there was no gift at all. The burden is heavily on the petitioner to establish such an 'oral gift' in case there was such an oral gift, by adducing evidence before a competent civil court. When the said question has to be decided by a competent civil court, and the same is not hit by the bar contained in Section 34 of the O.P.(Crl.).375/2016 : 9 : said Act, the learned Chief Judicial Magistrate is not competent to decide the said question in the proceedings before him. Matters being so, there is absolutely nothing to interfere with the impugned order. This O.P.(Crl.) is devoid of merits and is only to be dismissed, and I do so. In the result, this O.P.(Crl.) is dismissed. This judgment will not stand in the way of the petitioner to forward his claims and to get it decided before the competent civil court. It is made clear that in such cases, the parties can prove a _prima facie_ case in their favour. Sd/- **(B.KEMAL PASHA, JUDGE)** aks/14/07 _// True Copy //_ _PA to Judge_