State Bank of India v. Circle Inspector of Police, Anthikad Police Station, Anthikad, Thrissur, RiJu K.M, Rahibala, Suresh

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE N.NAGARESH`** ``` WEDNESDAY, THE 3[RD] DAY OF APRIL 2024 / 14TH CHAITHRA, 1946 WP(C) NO. 9705 OF 2024 ``` ## **`PETITIONER:`** ``` STATE BANK OF INDIA STRESSED ASSET RECOVERY BRANCH-II R.S.BUILDING, MG ROAD ERNAKULAM- 682016, REPRESENTED BY ITS CHIEF MANAGER, PIN – 682016 ``` ``` BY ADVS. M.JITHESH MENON ``` ## **`RESPONDENTS:`** - **`1 CIRCLE INSPECTOR OF POLICE ANTHIKAD POLICE STATION ANTHIKAD THRISSUR, PIN - 680641`** - **`2 RIJU K.M S/O MOHANAN K K KARTHIKAPPILY HOUSE KATOOR PO, THRISSUR, PIN - 680702`** - **`3 RAHIBALA W/O SURESH CHAKITHARA HOUSE PUTHENPEEDIKA(PO) THRISSUR, PIN - 690642`** - **`4 SURESH S/O NARAYANAN CHAKITHARA HOUSE, PUTHENPEEDIKA(PO) THRISSUR, PIN – 690642`** ``` BY ADVS. SRI.LINDONS C.DAVIS SMT.REKHA C.NAIR-SR.GOVERNMENT PLEADER E.U.DHANYA(K/672/2006) V.C.VALSAN(K/269/2002) N.S.SHAMILA(K/222/2016) CHINJU P. JOYIES(K/894/2016) ``` ``` WP(C) No.9705 Of 2024 ``` ``` 2 ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 03.04.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` WP(C) No.9705 Of 2024 ``` ``` 3 ``` ## **JUDGMENT** Dated this the 3[rd] day of April, 2024 The petitioner-Bank is the secured creditor. The 2[nd] respondent is the borrower. Respondents 3 and 4 claims to be a tenant under the 2[nd] respondent. On 08.07.2021 the 2[nd] respondent approached RASMEC Guruvayur Branch of the petitioner for a credit facility. Considering the said request, the RASMEC Guruvayur branch sanctioned a credit facility of ₹1,52,67,089 in the form of a Housing Loan and Suraksha Loan by depositing the title deeds relating to an extent of 22.69 Ares of land. 2. Since the loan account was classified as NPA, the petitioner issued a demand notice under Section 13(2) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002. On expiry of the 60 days as mentioned in Ext.P4, the petitioner took symbolic ``` WP(C) No.9705 Of 2024 ``` ``` 4 ``` possession of the secured asset on 18.08.2023. 3. The petitioner approached the Chief Judicial Magistrate’s Court filing an application under Section 14 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002. The Court appointed an Advocate Commissioner to take possession of the secured asset, by order dated 20.09.2023. The Advocate Commissioner took possession of the secured asset on 29.12.2023. Later, it was noticed that respondents 2 to 4 trespassed into the secured asset and started to live there. 4. Thereafter, the petitioner submitted a complaint before the 1[st] respondent on 28.02.2024. The 1[st] respondent visited the premises on 28.02.2024 and the petitioner was also present there. Respondents 3 and 4 raised a claim of tenancy and submitted that they have moved the Rent Controller / Accommodation Controller by an application dated 23.02.2024. Accordingly, the 1[st] respondent did not take ## `WP(C) No.9705 Of 2024` ``` 5 ``` further action and returned from the secured asset without taking any legal action. Aggrieved by the inaction of the 1[st] respondent to act on the complaint and remove respondents 2 to 4 from the secured asset that the petitioner has approached this Court filing this writ petition. 5. Though notice was issued to respondents 2 to 4, the 2[nd] respondent, who is the borrower, did not appear before this Court. Respondents 3 and 4 entered appearance through counsel and filed counter affidavit. In the counter affidavit, the 3[rd] respondent submitted that the respondents have valid tenancy as per Ext.R3(a) Rent Agreement dated 14.07.2021. The Rent Agreement would expire only on 14.07.2026. The mortgage was executed only on 03.09.2021, that is after Ext.R3(a) Rent Agreement. 6. The 3[rd] respondent further submitted that she is living in the property. The petitioner Bank had full knowledge of the Rent Agreement between the 3[rd] respondent and the 2[nd] ``` WP(C) No.9705 Of 2024 ``` ``` 6 ``` respondent. Suppressing that fact, the petitioners have obtained orders from the Chief Judicial Magistrate’s Court. A petition under Article 226 of the Constitution of India is a discretionary remedy. When the Bank has suppressed material facts before the CJM Court and has obtained orders, this Court need not exercise the discretionary jurisdiction in favour of the petitioners. 7. The 3[rd] respondent has filed a petition before the Rent Controller, which is pending. In the circumstances, as respondents 3 and 4 are in legal possession of the property, no orders can be passed in favour of the petitioner to take over the possession of the property using police force, contended the counsel for respondents 3 and 4. 8. I have heard the learned counsel for the petitioner, the learned Government Pleader representing the 1[st] respondent and the learned Counsel representing respondents 3 and 4. ``` WP(C) No.9705 Of 2024 ``` ``` 7 ``` 9. The impact of taking over of possession of a property through the assistance of a Court Commissioner under Section 14 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002, came up for consideration before this Court in _**Kumaran A. A v. Superintendent of Police, Thrissur and others**_ [2022 (3) KLT 672]. This Court held that the purport of the Act is to divest the owner of a property in the enforcement of security interest and initiate measures to wipe off the liability by resorting to measures including sale. If measures taken for dispossession and consequent sale are inter meddled by persons like respondents 4 and 5, it would result in a mockery of the rule of law. The will of the people reflected through the legislation will be seriously infringed, if the Court remains a mute spectator. 10. In the instant case, the borrowers had broken the locks and forcibly repossessed the secured asset which had ``` WP(C) No.9705 Of 2024 ``` ``` 8 ``` by then become the property of the petitioner. The dispossession of respondents 4 and 5 under Section 14 of the Act cannot be interfered with or infringed upon by any person after taking law into their own hands. When such illegal actions are taken, rule of law requires this Court to issue directions to the police force of the State to forcefully remove such trespassers. 11. In the present case, it is not in dispute that pursuant to the orders of the Chief Judicial Magistrate’s Court under Section 14 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002, the Advocate Commissioner has taken possession of the Secured Assets mortgaged by the 2[nd] respondent, on 29.12.2023. The said proceedings are not under challenge before any competent court. In such circumstances, any continued possession by respondents 2, 3 or 4 can only be treated as trespass into the property. ``` WP(C) No.9705 Of 2024 ``` ``` 9 ``` 12. The counsel for respondents 3 and 4 would point out that the judgment in _**Kumaran A. A.**_ (supra), was in respect of a trespass by a borrower. Respondents 3 and 4 have a valid tenancy, evidenced by a Rent Agreement. The taking over of the property was after the execution of the Rent Agreement. Therefore, the said judgment will not come to the help of the petitioners. 13. If respondents 3 and 4 have valid tenancy and seek possession of the building on that basis, respondents 3 and 4 will have to approach the competent Tribunal, as the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 has been amended and Section 17(4-A)) has been inserted in the Act, 2002. In the facts and circumstances of the case, I am inclined to grant relief to the petitioner. The writ petition is therefore disposed of commanding the 1[st] respondent to take immediate action on Ext.P8 and ``` WP(C) No.9705 Of 2024 ``` ``` 10 ``` cause such steps to remove respondents 2 to 4 from the property scheduled in Ext.P2 Deed and restore the property to the petitioner. Sd/- **N.NAGARESH JUDGE** hmh ``` WP(C) No.9705 Of 2024 ``` ``` 11 ``` ## **`APPENDIX OF WP(C) 9705/2024`** ``` PETITIONER EXHIBITS Exhibit P1COPY OF THE LETTER OF ARRANGEMENT DATED 9-7-2021 Exhibit P 2COPY OF THE TITLE DEED NO 791 OF 2021 DATED 14-7-2021 Exhibit P3COPY OF THE LETTER DATED 3-9-2021 Exhibit P 4COPY OF THE DEMAND NOTICE DATED 15-5- 2023 ``` ``` Exhibit P5COPY OF NOTICE DATED 18-8-2023 Exhibit P6COPY OF THE ORDER DATED 20-9-2023 IN CRL.M.P NO 8054 OF 2023 ON THE FILES OF CHIEF JUDICIAL MAGISTRATE COURT THRISSUR ``` - **`ExhibitP7 COPY OF THE REPORT SUBMITTED BY THE ADVOCATE COMMISSIONER DATED 29-12-2023 IN C.M.P NO 8054 OF 2023`** - **`Exhibit P8 COPY OF THE COMPLAINT DATED 28.02.2024 FILED BY THE PETITIONER BEFORE THE IST RESPONDENT`** - **`Exhibit P9 COPY OF THE RECEIPT EVIDENCING THE RECEIPT OF THE COMPLAINT`** - **`Exhibit P10 PHOTOGRAPH EVIDENCING THE TRESPASS BY THE RESPONDENTS 2 TO 4`** - **`Exhibit P11 PHOTOGRAPH EVIDENCING THE TRESPASS BY THE RESPONDENTS 2 TO 4`** - **`RESPONDENT EXHIBITS EXHIBIT R3(A) A COPY OF THE RENT AGREEMENT DATED 14.07.2021.`** - **`EXHIBIT R3(B) A COPY OF THE LICENSE DATED 15.09.2023 ISSUED FROM THE ANTHIKKAD GRAMA PANCHAYAT.`** - **`EXHIBIT R3(C) A COPY OF THE PETITION FILED BY THE RESPONDENTS HEREIN BEFORE THE RENT ACCOMMODATION CONTROLLER, THRISSUR, DATED 23.02.2024 WHICH IS NUMBERED AS C6/719969/24.`**