P.K. Basheer v. Union of India and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR** **MONDAY, THE 1ST DAY OF FEBRUARY 2016/12TH MAGHA, 1937** ## **WP(C).No. 25960 of 2015 (T)** **-----------------------------------------CRL.M.P.NO.907 OF 2015 OF CHIEF JUDICIAL MAGISTRATE COURT, ERNAKULAM ----------------------** ## **PETITIONER(S) :** **-------------------------** **P.K.BASHEER, AGED 45 YEARS, S/O.KUNJEENPILLA, 357(7/107), PLAMATTATHUKUDY, 9, PUTHEYEDAM, KANJOOR, ERNAKULAM DISTRICT, NOW DOING BUSINESS IN DOOR NO.VP.1/120A, VP.1/120B, VP.1/119, VP 1/119A, GOLDEN/STAR FURNITURE, MARAMPILLY VILLAGE, KUNNATHUNADU TALUK, ERNAKULAM DISTRICT.** **BY ADV. SRI.JOMON P.VARGHESE** **RESPONDENT(S) : ----------------------------** **1. UNION OF INDIA, REP. BY SECRETARY, MINISTRY OF BANKING & FINANCE, PARLIAMENT, NEW DELHI-1.** ## **2. THE AUTHORISED OFFICER,** - **FEDERAL BANK, PERUMBAVOOR BRANCH, ERNAKULAM- 682 018.** ## **3. THE BRANCH MANAGER,** - **FEDERAL BANK, PERUMBAVOOR BRANCH, ERNAKULAM- 682 018.** **4. M.H.AHAMMED KUNJU, S/O.HYDROSE, MOOKADA HOUSE, PALLIPARAM KARA, MARAMPILLY VILLAGE, KUNNATHUNADU TALUK, MANAGING PARTNER, M/S GOLDEN STAR VENEER, MUDICAL.P.O., ERNAKULAM- 682 018.** **R1 BY ADV. SRI.N.NAGARESH, ASSISTANT SOLICITOR GENERAL SRI.P.L.VENUKUMAR, CGC** **R2 & R3 BY ADVS. SRI.A.ANTONY SMT.LEELAMMA ANTONY R4 BY ADV. SRIP.S.SUJETH** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 01-02-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **WP(C).No. 25960 of 2015 (T)** ## **------------------------------------------** ## **APPENDIX** **PETITIONER(S)' EXHIBITS : -----------------------------------------** - **P1: THE TRUE COPY OF THE INJUNCTION ORDER IN O.S.NO.491/2014 OF MUNSIFF'S COURT, PERUMBAVOOR.** - **P2: THE TRUE PHOTOCOPY OF THE IMPLEADING PETITION IN O.S.NO.491/14 BEFORE MUNSIFF'S COURT, PERUMBAVOOR.** - **P3: THE TRUE PHOTOCOPY OF THE SUIT IN O.S.NO.491/2014 OF MUNSIFF'S COURT, PERUMBAVOOR.** - **P4: THE TRUE PHOTOCOPY OF THE LEASE AGREEMENT DATED 26.11.1997.** - **P5: THE TRUE PHOTOCOPY OF THE LEASE DATED 14.06.2006.** - **P6: THE TRUE PHOTOCOPY OF THE LEASE DEED DATED 15.05.2014.** - **P7: THE TRUE PHOTOCOPY OF THE IMPLEADING PETITION IN CRL.M.P.907/15 BEFORE CHIEF JUDICIAL MAGISTRATE COURT AT ERNAKULAM.** - **P8: THE TRUE PHOTOCOPY OF THE OBJECTIONS IN CRL.MP 907/15 BEFORE CJM ERNAKULAM.** - **P9: THE TRUE PHOTOCOPY OF THE STAY PETITION IN CRL.MP 907/15 BEFORE CHIEF JUDICIAL MAGISTRATE COURT, ERNAKULAM.** - **P10: THE TRUE PHOTOCOPY OF THE CMP 3848/2015 IN CMP 907/2015 BEFORE THE CHIED JUDICIAL MAGISTRATE COURT, ERNAKULAM.** - **P11: THE TRUE PHOTOCOPY OF THE LEASE DEED EXECUTED BETWEEN PETITIONER AND 4TH RESPONDENT.** ## **RESPONDENT(S)' EXHIBITS :** **-------------------------------------------** - **EXT.R2(A): TRUE COPY OF THE VALUATION REPORT DATED 04.01.2008 BY THE APPROVED VALUER.** - **EXT.R2(B): TRUE COPY OF THE LICENCE DATED 06.06.2008 ISSUED BY THE VAZHAKULAM GRAMA PANCHYAT TO THE 4TH RESPONDENT.** - **EXT.R2(C): TRUE COPY OF CERTIFICATE OF REGISTRATION UNDER KERALA VALUE ADDED TAX RULES DATED 20.06.2007 ISSUED BY THE COMMERCIAL TAX OFFICER TO THE 4TH RESPONDENT.** - **EXT.R2(D): TRUE COPY OF CONSENT CERTIFICATE BY POLLUTION CONTROL BOARD DATED 11.03.2008 TO THE 4TH RESPONDENT.** **WP(C).No. 25960 of 2015 (T) -----------------------------------------EXT.R2(E): TRUE COPY OF THE RECEIPT DATED 11.02.2009 ISSUED BY THE VAZHAKULAM GRAMA PANCHAYAT TO THE 4TH RESPONDENT. EXT.R2(F): TRUE COPY OF COMMUNICATION DATED 06.05.2009 ISSUED BY THE MINISTRY OF COMMERCE, GOVERNMENT OF INDIA, TO THE 4TH RESPONDENT. EXT.R2(G): TRUE COPY OF NO OBJECTION CERTIFICATE DATED 12.10.2004 ISSUED BY DIVISION FOREST OFFICE OF THE 4TH RESPONDENT. EXT.R2(H): TRUE COPY OF JUDGMENT DATED 22.07.2015 IN W.P.(C).NO.5643 OF 2015 OF THIS HON'BLE COURT. //TRUE COPY// P.A.TO JUDGE.** Msd. **A.K.JAYASANKARAN NAMBIAR, J. ............................................................. W.P.(C).No.25960 Of 2015 ............................................................. Dated this the 1[st] day of February, 2016** ## **J U D G M E N T** The petitioner, who is stated to be a tenant in premises belonging to the 4[th] respondent, which was mortgaged to the 2[nd] respondent bank on 29.11.1997 for the purposes of availing a loan from the bank, is aggrieved by the steps initiated at the instance of the respondent bank for recovery of defaulted loan amounts, inter alia, by proceeding against the building in which the petitioner is stated to be a tenant. In the writ petition, it is the case of the petitioner that, pursuant to an application filed by the respondent bank under Section 14 of the Securitisation and Reconstructions of Financial Assets and Enforcement of Security Interest Act, 2002, hereinafter referred to as the 'SARFAESI Act', proceedings are initiated before the Chief Judicial Magistrate Court, Ernakulam, for disposessing the petitioner. An application filed by the petitioner for impleadment in the proceedings before the Chief Judicial Magistrate Court was dismissed by the said Court, on the ground that, the petitioner was not required to be heard prior to passing -2- W.P.(C). No.25960 of 2015 orders under Section 14. When the matter came up for admission, this Court had by an order of status quo stayed the dispossession of the petitioner, initially for a period of two weeks. The said interim order was subsequently revived and extended from time to time and continues to be in force even today. The issue that arises in the instant case is essentially whether the petitioner, who claims to be a tenant, and relies upon an unregistered lease agreement that is produced along with an I.A in the writ petition to contend that he is a lessee in possession of the premises against which the respondent bank has initiated steps under the SARFAESI Act, is entitled to a protection against dispossession at the instance of the respondent bank. While the earlier decision of the Supreme Court in the case of **Harshad** **Govardhan Sondagar v. International Assets Reconstruction Co. Limited and Others [(2014) 6 SCC (1)]** indicated that persons such as the petitioner would not be entitled to protection from dispossession, I notice that in a recent decision of the Supreme Court in **Vishal N.Kalsaria v. Bank of India and Others [2016 (1) KHC 330]** the Supreme Court has clarified the earlier decision by observing that, once a tenancy is validly created, a tenant can be evicted only after following the due -3- W.P.(C). No.25960 of 2015 process of law, as prescribed under the provisions of the Rent Control Act, and a tenant cannot be arbitrarily evicted by using the provisions of the SARFAESI Act. No doubt, the learned counsel for the respondent bank would vehemently point out that there is no valid tenancy in existence that would insulate the petitioner from the steps taken by the respondent bank for dispossession under the SARFAESI Act. It is also his contention that while there is no valid lease agreement on the basis of which the petitioner can claim any right against dispossession, the said premises is also used as a plywood factory and the question of tenancy can never arise. In my view, the matter will have to be examined by the Chief Judicial Magistrate Court where the application preferred by the respondent bank under Section 14 is under consideration. Accordingly, I dispose the writ petition with the following directions: (i) The Chief Judicial Magistrate Court, Ernakulam shall consider Ext.P10 application (C.M.P. No.3848 of 2015 in Crl.M.P.No.907 of 2015) preferred by the petitioner in the light of the decisions of the Supreme Court referred above and in the light of the evidence produced on either side to ascertain whether there is in fact a tenancy -4- W.P.(C). No.25960 of 2015 in existence prior to the mortgage executed in favour of the respondent bank by the 4[th] respondent and whether the petitioner is entitled to protection against dispossession. (ii) The learned Magistrate shall pass orders after hearing both sides and after considering the evidence adduced on either side within a period of four months from the date of receipt of a copy of this judgment. (iii) The interim stay against dispossession that was granted by this Court in the present writ petition shall continue to be in force for the above mentioned period of four months within which time the learned Magistrate is expected to pass final orders in Ext.P10 application preferred by the petitioner. The writ petition is disposed as above. ## **A.K.JAYASANKARAN NAMBIAR JUDGE** mns/1.02.16 -5- W.P.(C). No.25960 of 2015