SREEKUMAR M and M.S.SREEMA v STATE OF KERALA & OTHERS

## IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE BASANT BALAJI TUESDAY, THE 12[TH] DAY OF DECEMBER 2023 / 21ST AGRAHAYANA, 1945 ## WP(C) NO. 35503 OF 2023 ## PETITIONER/S: 1 SREEKUMAR M AGED 65 YEARS S/O. MADHAVAN M K, RESIDING AT NO.12/68, MUKUNDAN STREET, KRISHNAPURAM, AMABATTUR, CHENNAI, PIN - 600053 2 M.S.SREEMA AGED 35 YEARS D/O. SREEKUMAR M, RESIDING AT LAKSHMIPRIYA, KANDALOOR, P/W 4, PUTHIYAVILA MURI, KANDALLOOR, ALAPPUZHA, PIN - 690531 BY ADVS. UTHARA A.S NIDHI BALACHANDRAN C.UNNIKRISHNAN (KOLLAM) ANANDA PADMANABHAN VIVEK NAIR P. VIJAYKRISHNAN S. MENON GOUTHAM KRISHNA U.B. ## RESPONDENT/S: - 1 STATE OF KERALA REPRESENTED BY THE HOME SECRETARY, SECRETARIAT, THIRUVANANTHAPURAM., PIN - 695001 - 2 STATION HOUSE OFFICER MANNANCHERRY POLICE STATION, MANNANCHERRY ALAPPUZHA, PIN - 688538 - 3 STATION HOUSE OFFICER KANAKAKUNNU POLICE STATION, ALAPPUZHA, PIN - 690506 - 4 THE DISTRICT POLICE CHIEF ALAPPUZHA KERALA, PIN - 688001 - 5 K. BHASKARAN AGED 70 YEARS RESIDING AT SNEHALAYAM, PUTHIYAVILA P.O., KANDALLOOR, ALAPPUZHA., PIN - 690531 WPC 35503/2023 -2- - 6 PADMAVATHY - W/O. BHASKARAN, RESIDING AT SNEHALAYAM, PUTHIYAVILA P.O., KANDALLOOR, ALAPPUZHA., PIN - 690531 - 7 SARATH CHANDRAN RESIDING AT SNEHALAYAM, PUTHIYAVILA P.O., KANDALLOOR, ALAPPUZHA, PIN - 690531 - 8 LEKSHMI SARATH RESIDING AT SNEHALAYAM, PUTHIYAVILA P.O., KANDALLOOR, ALAPPUZHA, PIN - 690531 - 9 SARASAWTHI RESIDING AT SNEHALAYAM, PUTHIYAVILA P.O., KANDALLOOR, ALAPPUZHA, PIN - 690531 - 10 SASI - C/O. BHASKARAN, KANDALOOR, ALAPPUZHA, KERALA, PIN - 690531 - 11 ARUN - C/O. BHASKARAN, KANDALOOR, ALAPPUZHA, KERALA, PIN - 690531 - 12 ADDL.R12. STATE BANK OF INDIA, REPRESENTED BY ITS BRANCH MANAGER, SME MAVELIKKARA BRANCH, BM COMMERCIAL COMPLEX, NEAR KSRTC BUS STAND, MAVELIKKARA, ALAPPUZHA DISTRICT - 690101 - 13 ADDL.R13. THE AUTHORISED OFFICER (UNDER THE SARFAESI ACT, 2002), STATE BANK OF INDIA, STRESSED ASSETS RECOVERY BRANCH, 7TH FLOOR, VANKARATH TOWERS, PALARIVATTOM, ERNAKULAM - 682024 (ADDL.R12 & ADDL.R3 IMPLEADED AS PER ORDER DATED 28-11-2023 IN IA 1/23 IN WPC 35503/2023) BY ADVS. R.REJI M.V.THAMBAN(T-12) THARA THAMBAN(T-209) B.BIPIN(K/297/2007) ARUN BOSE(K/140/2013) JEENA A.V.(K/1146/2006) M.RAMESH CHANDER (SR.)(R-284) ## OTHER PRESENT: SRI. JITHESH MENON SC THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 12.12.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC 35503/2023 -3- ## JUDGMENT (Dated this the 12[th] day of December 2023) The petitioners have approached this Court for a direction compelling and commanding respondents 1 to 4 to afford effective and appropriate police protection to the life and properties of the petitioners and their family against the threat of violence by respondents 5 to 11 or their henchmen. 2. 1[st] petitioner purchased property having an extent of 45.10 ares of land in Re.Sy No. 619/14-5, Ambalapuzha Taluk, Alappuzha District, conducted in the e-auction under the SARFAESI Act by M.S.T.C Eco-Commerce for Stressed Asset Recovery Branch (SARB), State Bank of India. 3. The auction was conducted on 20.07.2023 and the property was mutated in the name of 1[st] petitioner on WPC 35503/2023 -4- 19.08.2023. The property originally belonged to the 5[th] respondent. After the mutation was effected on 23.08.2023, when the petitioner sent a few labourers to clean and do some work in the property, respondents 5 to 9 trespassed into the property and intimidated and manhandled the labourers. On 23.08.2023, the 5[th] respondent, his wife, sonin-law, and daughters trespassed into the property, threatened, physically assaulted the labourers and obstructed the work. Therefore, a formal complaint was filed on 25.08.2023 before the SHO, Mannancherry Police Station, against the unlawful activities of the trespassers and their criminal acts obstructing peaceful enjoyment of the property. 4. It is also submitted that on 18.09.2023, there was another trespass, and FIR No.867/2023 was registered before the Mannancherry Police Station. On 05.10.2023, the same WPC 35503/2023 **==> picture [16 x 9] intentionally omitted <==** accused also encroached upon another property purchased by the 1[st] petitioner in the very same auction; it is located near Ambalamukku in Survey No.161/17 and 161/18 of Kandalloor Village, coming under the jurisdiction of Kanakakunnu Police Station. On the basis of the statement given by the 2[nd] petitioner, FIR No.426/2023 was registered by the Kanakakunnu Police Station, on 06.10.2023. Since the petitioners are not able to enjoy the fruits of the e- auction and being the absolute owners against the trespass and harassment made by respondents 5 to 11, the 2[nd] petitioner submitted a detailed complaint on 16.10.2023 before the 4[th] respondent for rendering adequate police protection. Since no action was taken on the complaints made by the petitioners, they have approached this Court seeking police protection. WPC 35503/2023 -6- 5. A counter affidavit is filed on behalf of the 7[th] respondent in which it is contended that on the basis of the interim order passed by this Court on 28.10.2023, the 2[nd] petitioner, along with henchmen, are trying to trespass into the property and attempting to take physical possession of the property. It is also submitted that the 1[st] petitioner has suppressed the pendency of SA No.365/2023 pending before the DRT, Ernakulam and also suppressed the pendency of I.A No.2516/2023 filed to set aside sale by amendment application in respect of the properties lying in Survey No.161/17 and 161/18 of Kandalloor Village. Ext.R7(a) is the application filed as I.A No.2516/2023 . The 1[st] petitioner is only a name lender and he is permanently residing in Chennai. The petitioners also suppressed the pendency of a prosecution petition filed as I.A.No.6 of 2023 in OS. No.15 WPC 35503/2023 **==> picture [16 x 9] intentionally omitted <==** of 2023 on the files of Sub Court, Mavelikkara. The 2[nd] petitioner in this Writ Petition is the 10[th ] counter petitioner in the said I.A. Another O.S. No.17 of 2023 filed by the 5th respondent against the father in law of the 2nd petitioner which was filed to recover a sum of Rs.3,69,28,852/- was also suppressed from this court. O.S.No.24 of 2023 is another suit filed by the 5th respondent against the father in law of the 2nd petitioner which is pending before the Sub Court, Mavelikkara. On the basis of the interim order passed by this court, the 2nd petitioner, her husband and her father in law are trying to trespass into the scheduled properties and attempting to take physical possession of the properties. The 6[th] respondent has filed a detailed complaint before the Superintendent of Police Alappuzha on 7.11.2023 produced as Ext.R7(e). WPC 35503/2023 **==> picture [16 x 9] intentionally omitted <==** Another suit filed by the 6[th] respondent as O.S.No.703 of 2023 is also pending before the Munsiff’s court, Alappuzha. Thus it can be seen that suppressing the pendency of suits in various courts and the pendency before the DRT, this WP is filed suppressing material facts. 6. It is further submitted that the husband of the 2[nd] petitioner is involved in a series of criminal cases pertaining to the dispute in question, one of the FIR No.110/23 registered by the Kanakakunnu Police Station, and another is FIR No.69/2023 by the same Police Station, and also submits that the petitioners have approached this Court seeking police protection, suppressing the pendency of suits and suppressing the pendency of proceedings for the DRT. 7. A reply is filed by the 2[nd] petitioner to the counter affidavit filed by the 7th respondent. I.A. No.2516 of 2023 WPC 35503/2023 **==> picture [16 x 9] intentionally omitted <==** filed in S.A. No.365 of 2023 before the DRT has been dismissed along with I.A. Nos.2518 of 2023 and 2519 of 2023. Ext.P6 and P7 certificates of sale are produced along with the reply affidavit. 8. It is also stated in the reply affidavit that the properties in question were taken in physical position by the Bank before the auction was conducted, and the 1[st] petitioner purchased the same, and the physical position was handed over to the 1[st] petitioner. Therefore, the allegation that the 2[nd] petitioner and the henchmen are trying to take possession is absolutely false. Ext.P6 certificate of sale is issued on 24.07.2023 in respect of 24.07 ares in Re-survey No.161/17 and 161/18 of Kandalloor Village. The certificate of sale in respect of 45.10 ares in Survey No.619/14-5 of Komalapuram Village dated WPC 35503/2023 **==> picture [22 x 9] intentionally omitted <==** 02.08.2023 is produced as Ext.P7. 9. The issue revolves around a property which has been bid in auction by the State Bank of India. Therefore, the petitioners were directed to implead the State Bank of India as additional respondent and I.A. No.1 of 2023 was filed and was allowed by this court on 28.11.2023. The State bank of India is represented by its Branch manager, SME Mavelikkara is impleaded as additional 12[th] respondent and the Authorized Officer as additional 13[th] respondent. 10. Heard the counsel for the petitioners, Shri C Unnikrishnan, Shri.Ramesh Chander for respondents 5 to 9 and Standing counsel, Shri.Jithesh Menon for 12[th] respondent and 13[th] respondent- State Bank of India. 11. Standing Counsel for the 13[th] respondent, Sri. Jithesh Menon submits that the petitioners are auction WPC 35503/2023 **==> picture [22 x 9] intentionally omitted <==** purchasers after paying the entire sale consideration as per the auction. It is after the issuance of certificate of sale that the respondents have challenged the same before the DRT, which was negatived by the DRT and thus, the petitioners are absolute owners of the property that was auctioned under the SARFAESI Act. 12. It is worthwhile to note that while disposing I.A. No.2516 of 2023 in S.A. No.365 of 2023, the DRT in its order stated as follows: “The learned counsel for the applicants strenuously contended that sale cannot be confirmed and sale certificate cannot be issued before depositing of sale consideration. It appears from Rule 9 of the Security Interest (Enforcement) Rules, 2002; the sale shall be confirmed in favour of the purchaser who has offered highest bid and after confirmation, the auction purchaser shall deposit 25% of the bid amount on the same date or the next working date. The same was also held in the judgment of Hon'ble Apex Court reported in 2018 KHC 6250 rendered in the case titled Rakesh WPC 35503/2023 -12- Birani (d) through LRs. V. Prem Narain Sehgal & another wherein it was held that "R.9(2) makes it clear that after confirmation by the secured creditor the amount has to be deposited". Hence the contention of the learned counsel for the applicants that the sale cannot be confirmed before depositing of the bid amount is not tenable. The ratio decided by the Hon'ble Apex Court in Indian Overseas Bank v M/s.RCM Infrastructure Ltd. and another (supra) cited by the learned counsel for the applicants it was held at paragraph 32 that the sale would be completed only when the auction purchaser makes entire payment and the authorized officer, exercising the power of sale, shall issue a sale certificate of sale in favour of the auction purchaser. In this case the defendant Nos. 1 and 2 submitted that the auction purchaser has deposited the entire consideration amount and thereafter the sale certificate was issued. In such premises, no prima facie illegality is committed by the defendant Nos. 1 and 2 in issuing such sale certificate. The auction purchaser purchased the properties by investing considerable amount. In such premises, the applicants cannot restrain him in enjoying the purchased properties. In case stay of all the further proceeding in respect of sale, it would affect his interest. No prima facie illegally is also made out by the applicants in seeking stay of all further proceedings in the securitization measure. Hence the applicant is not entitled to get WPC 35503/2023 **==> picture [22 x 9] intentionally omitted <==** any interim protection in this case in the IA no. 2518/2023.” 13. A perusal of Ext.P6 certificate of sale would also show that, on acknowledgment of Rs.60,50,000/- being the sale price in full as highest bid amount in the e-auction held on 20.07.2023, the delivery and possession of the scheduled property was handed over, free from all encumbrances known to the secured creditor. The said Ext.P6 is in respect of 24.07 ares of land (8.08 ares of land in Re.Survey No.161/17 & 15.99 ares of land in Re.Sy. No.161/18) and Ext.P7 certificate of sale in respect of 45.10 ares of land in Re.Sy No.619/14-5 in Ambalapuzha Taluk, Alapuzha District. The said Ext.P7 was issued after acknowledgment of Rs.1,61,00,000/- being the sale price in full as the highest bid amount in the e-auction held on WPC 35503/2023 **==> picture [22 x 9] intentionally omitted <==** 20.07.2023 and the delivery and possession of the scheduled property was handed over, free from all the encumbrances known to the secured creditor. 14. The petitioners, being the auction purchasers, on paying the entire sale consideration to the additional 12[th] respondent and Exts.P6 and P7 certificates of sale were issued. When an auction is conducted, and the sale is confirmed, and a certificate of sale is issued, then the auction purchaser becomes the real owners of the property, and they are entitled to mutate the same in their name and enjoy the full right as an owner and possession of the property. Though the party respondents challenged the confirmation of the sale before the DRT, they could not succeed. 15. The learned Sr. Counsel Sri. Ramesh Chander, WPC 35503/2023 **==> picture [22 x 9] intentionally omitted <==** appearing for the respondents 5 to 9, submits that the said order is under challenge before the DRAT, but fairly concedes that, till date, no orders have been passed by the DRAT. 16. When petitioners have obtained absolute ownership and possession over the property through the certificate of sale, they are legally entitled to hold possession, and the respondents, unless they get an order from the competent authority, cannot object to the ownership and possession of the property. 17. In such circumstances, the petitioners are entitled to an order from this Court for life and property of the petitioners and their family against the threat and violence of respondent Nos.5 to 11 or their henchmen. A division bench of this court in Illyas v. State of Kerala [2014 (4) KLT WPC 35503/2023 -16- ## 362] held in paragraph 12 as follows: This is an instance where the civil rights of the parties have been determined, the property was delivered, the Ameen who has effected delivery of the property has reported to have taken physical possession of the property. On this basis, the Court has closed the execution petition as well. There is no reason to doubt the bona fides of the said statement and no contention can be urged by the respondents against the delivery receipts or the order passed by the Civil Court. The party respondents' contention is that they have obstructed delivery. was a case of obstruction, the petitioner could have approached the Execution Court for removal of obstruction, in which event Execution Court would have passed appropriate order in the application submitted by the petitioner. No such event has happened. Therefore we are of the view that the version of respondents 4 to 6 are not believable and it is clear that they have trespassed into the property of the petitioner after they were evicted from the said building. In such an event, there is nothing wrong in the petitioner approaching the police for necessary assistance to restore possession of the building. ## 18. In Baby v. Deputy Superintendent of Police [2019 ## (4) KLT 12] , it was held in paragraph 7 as follows: “7. The decree itself was passed as early as on 17.10.2012. The application to set aside the ex parte decree is said to have been filed in June, 2018. As we noticed there has been constant disputes between the WPC 35503/2023 -17- parties which often escalated into violence and the police were also involved. The Execution Petition has been pending from 2013 and there were consistent challenge of the various orders passed by the Execution Court. We are surprised by the grossly delayed application before the Civil Court to set aside a decree, which obviously is filed after consistently failing in the attempts to flout the decree and the consequential orders passed in the Execution Proceedings. There was always allegation of violation of the Civil Court's orders and later, on specific orders issued by the Munsiff's Court, the fence was reconstructed which was destroyed by the respondent. This is a case in which the petitioner has been approaching the Civil Court for remedies, and the orders obtained are attempted to be frustrated by the respondents 3 to 5. The respondents are seen to be person who have absolutely no respect for law and the orders passed by the Civil Court. Even when the orders in execution were enforced with police assistance, the respondents have committed acts in violation of the orders passed by the Civil Court. This is a case in which the jurisdiction under Art 226 can be invoked, as has been held by the another Division Bench in Illyas v State of Kerala (2014 (4) KLT 362).” 19. Therefore, there will be a direction to respondents 2 to 4 to afford effective and appropriate police protection to the life and properties of the petitioners and their family WPC 35503/2023 **==> picture [22 x 9] intentionally omitted <==** against the violence of the respondents 5 to 11 and their henchmen. It is clarified that the judgment passed by this Court in this police protection matter will not stand in the way of the respondents 5 to 11 to challenge the sale and the confirmation before the appropriate forum. Writ Petition is allowed as above. Sd/- BASANT BALAJI JUDGE JS WPC 35503/2023 ## -19- ## APPENDIX OF WP(C) 35503/2023 |PETITIONER EXHIBITS|| |---|---| |Exhibit P1|A TRUE COPY OF THE COMPLAINT FILED BEFORE THE| ||SHO OF MANNANCHERRY POLICE STATION ON| ||25.08.2023| |Exhibit P2|A TRUE COPY OF THE FIR NO. 867/2023 FILED BEFORE| ||THE MANNANCHERRY POLICE STATION DATED| ||19.09.2023| |Exhibit P3|A TRUE COPY OF THE FIR NO. 426/2023 DATED| ||06.10.2023 REGISTERED BEFORE THE KANAKAKUNNU| ||POLICE STATION| |Exhibit P4|A TRUE COPY OF THE COMPLAINT FILED BEFORE THE| ||4TH RESPONDENT DATED 16.10.2023| |RESPONDENT EXHIBITS|| |Exhibit R7(c)|True copy of the plaint in O.S.No.17 of 2023 of the| ||Honble Sub Court, Mavelikkara| |Exhibit R7(d)|True copy of the plaint in O.S.No.24/2023 on the files of| ||Sub Court, Mavelikkara| |Exhibit R7(e)|True copy of the complaint dated 07.11.2023| |Exhibit R7(f)|True copy of the receipt bearing petition| ||No.77504/2023/A dated 7.11.2023| |Exhibit R7(g)|True copy of the plaint in 703/2023 on the files of| ||Munsiff Court, Alappuzha| |Exhibit R7(h)|True copy of FIR.No.110/2023 of Kanakakunnu, Police| ||Station| |Exhibit R7(i)|True copy of the copy of FIR No.69/2023 of| ||Kanakakunnu, Police station| |Exhibit R7(a)|True copy of the application as I.A.No.2516/2023 in| ||S.A.No.365/2023 on the files of DRT, Ernakulum| |Exhibit R7(b)|True copy of I.A. No.6/2023 in O.S.No.15/2023 of the| ||Honble Sub Court, Mavelikkara| |PETITIONER EXHIBITS|| |Exhibit P5|True copy of the common order of DRT in IA 2516/2023,| ## WPC 35503/2023 -20- IA 2518/2023 and IA 2519/2023 Exhibit P6 True copy of the sale certificate dated 24/7/2023 in respect of 24.07 acres in resurvey no.161/17 and 161/18 of kandalloor village issued in favour of the 1st petitioner. Exhibit P7 True copy of the sale certificate dated 2/8/2023 in respect of 45.10 acres in resurvey no.619/14-5 of komalapuram village issued in favour of the 1st petitioner Exhibit P8 True copy of the plaint in OS No.15/2023 pending before The Honourable sub court, Mavelikkara