State Bank of India v. Raphy and Viswanathan

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **TUESDAY, THE 3RD DAY OF OCTOBER 2017/11TH ASWINA, 1939** ## **OP(C).No. 2159 of 2017 (O)** ## **---------------------------** **O.S.NO.2405/2016 OF PRINCIPAL MUNSIFF'S COURT, IRINJALAKUDA.** **PETITIONER:** **------------------** **STATE BANK OF INDIA, KODAKARA BRANCH,OPPOSITE GOVERNMENT L.P. SCHOOL, CHALAKUDY ROAD, KODAKARA.P.O., THRISSUR-680 684, REPRESENTED BY ITS BRANCH MANAGER.** ## **BY ADV. SRI.M.JITHESH MENON** **RESPONDENT(S):** **-------------------------** **1. RAPHY, S/O. VARIKKASSERY KUNJUVARKEY, PROPRIETOR, M/S. VARIKKASSERY STORES, CHALAKUDY HIGHWAY ROAD, KODAKARA.P.O., THRISSUR-680 684.** **2. VISWANATHAN, S/O. ELINJERI RAMANKUTTY, MANAKULANGARA DESOM, KODAKARA VILLAGE, CHALAKUDY, PIN-680 684** **R2 BY ADVS. SRI.K.B.PRADEEP SMT.J.HARIPRIYA** **THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 03-10-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **TS** ## **OP(C).No. 2159 of 2017 (O)** **--------------------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** ## **------------------------------------** - **EXHIBIT P1 TRUE COPY OF THE LETTER ISSUED BY THE 1ST RESPONDENT DATED 17/10/2015** - **EXHIBIT P2 TRUE COPY OF THE NOTICE ISSUED BY THE PETITIONER UNDER SECTION 13 (2) OF THE SARFAESI ACT.** - **EXHIBIT P3 TRUE COPY OF THE NOTICE ISSUED BY THE PETITIONER UNDER SECTION 13 (4) OF THE SARFAESI ACT DATED 01.8.2016.** - **EXHIBIT P4 TRUE COPY OF THE ORDER PASSED BY THE MUNSIFF COURT, IN I.A. NO.6349/2016 IN O.S.NO.2405/2016 DATED. 22.2.2017..** - **EXHIBIT P5 TRUE COPY OF THE ORDER PASSED BY THE HONOURABLE MUNSIFF'S COURT IN I.A.NO.8629/2016 IN O.S.NO.2405/2016 DATED 22/2/2017** - **EXHIBIT P6 TRUE COPY OF THE RENT DEED RELIED ON BY THE 2ND RESPONDENT BEFORE THE HONOURABLE MUNSIFF'S COURT DATED 22.3.2013..** - **EXHIBIT P7 TRUE COPY OF THE RELEVANT PAGES 1,7,8,9 OF THE NOTIFICATION ISSUED BY THE CENTRAL GOVERNMENT DATED.12.8.2016...** ## **RESPONDENT(S)' EXHIBITS - NIL** **------------------------------------------------** ## **/TRUE COPY/** **PS TO JUDGE** **TS** ## **ANIL K. NARENDRAN, J.** ## **----------------------------------------------O.P(C) No.2159 of 2017 -----------------------------------------------** Dated this the 3[rd] day of October, 2017 ## **J U D G M E N T** The petitioner, who is the 2[nd] defendant in O.S.No.2405 of 2016 on the file of Principal Munsiff's Court, Irinjalakkuda, is before this Court in this Original Petition filed under Article 227 of the Constitution of India seeking an order to quash Exts.P4 and P5 orders dated 22.2.2017 of the Principal Munsiff's Court, Irinjalakuda in I.A.Nos.6349 of 2016 and 8629 of 2016 in O.S.No.2405 of 2016 and for a declaration that O.S.No.2405 of 2016 filed by the 2[nd] respondent herein is not maintainable in view of Section 34 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (for brevity, 'the SARFAESI Act') and Section 17 of the said Act, as amended by the Enforcement of Security Interest and Recovery of Debt Laws and Miscellaneous Provisions (Amendment) Act, 2016. 2. On 17.7.2017 this Court admitted this Original Petition on file and issued notice to the respondents. This Court has also O.P(C) No.2159 of 2017 :-2-: granted an interim stay of Exts.P4 and P5 orders and all further proceedings in O.S No.2405 of 2016 on the file of the Principal Munsiff's Court, Iringalakkuda, for a period of one month. The said interim order, which was extended from time to time, is still in force. 3. Heard the learned counsel for the petitioner/2[nd] defendant and also the learned counsel for the 2[nd] respondent/ plaintiff. Despite service of notice none appeared for the 1[st] respondent/1[st] defendant. 4. O.S.No.2405 of 2016 is one filed by the plaintiff for a permanent prohibitory injunction against the defendants. According to the plaintiff, he is a tenant under the 1[st] defendant in respect of a residential property and that the 1[st] defendant is trying to evict him form the said property by colluding with the 2[nd] defendant. In the said suit, the plaintiff filed I.A.Nos.6349 of 2016 and 8629 of 2016 under Order XXXIX, Rule 1 of the Code of Civil Procedure, 1908. In I.A.No.6349 of 2016 the plaintiff sought for a temporary injunction restraining the defendants, their men and agents from forcefully evicting him from the petition schedule O.P(C) No.2159 of 2017 :-3-: property and causing obstruction to the occupation of the said property the plaintiff and his family. In I.A.No.6349 of 2016 filed along with the suit, the court below granted an ad interim injunction restraining the defendants from forcefully evicting the plaintiff from the petition schedule property. During the pendency of the suit, the 2[nd] defendant made publications regarding auction of the petition schedule property. Therefore, in I.A.No.8629 of 2016 the plaintiff sought for a temporary injunction restraining the defendants, their men and agents from conducting auction of the petition schedule property till disposal of the suit. 5. The 2[nd] defendant filed counter contending, inter alia, that the suit and the interlocutory applications are not maintainable in view of Section 37 of the SARFAESI Act. It was also contended that the plaintiff is not a tenant occupying the petition schedule property. The rental agreement is a fabricated one and as such, the plaintiff is neither a statutory tenant nor a contractual tenant. 6. The court below, after considering the rival contentions, allowed I.A.No.6349 of 2016 by Ext.P4 order dated O.P(C) No.2159 of 2017 :-4-: 22.2.2017, thereby restraining the defendants by way of a temporary prohibitory injunction from forcefully evicting the plaintiff from the house situated in the petition schedule property, without due process of law, till disposal of the suit. By Ext.P5 order dated 22.2.2017, the court below allowed I.A.No.8629 of 2016, thereby restraining the defendants, their men and agents by way of a temporary prohibitory injunction from conducting auction and sale of the petition schedule property, till disposal of the suit. 7. In **Shalini Shyam Shetty v. Rajendra Shankar Patil** **[(2010) 8 SCC 329]** the Apex Court, while analysing the scope and ambit of the power of superintendence under Article 227 of the Constitution, held that the object of superintendence, both administrative and judicial, is to maintain efficiency, smooth and orderly functioning of the entire machinery of justice in such a way as it does not bring it into any disrepute. The power of interference under Article 227 is to be kept to the minimum to ensure that the wheel of justice does not come to a halt and the fountain of justice remains pure and unpolluted in order to O.P(C) No.2159 of 2017 :-5-: maintain public confidence in the functioning of the tribunals and courts subordinate to the High Court. 8. In **Sobhana Nair K.N. v. Shaji S.G.Nair [2016 (1) KHC 1]** a Division Bench of this Court held that, law is well settled by a catena of decisions of the Apex Court that in proceedings under Article 227 of the Constitution of India, this Court cannot sit in appeal over the findings recorded by the lower court or tribunal and the jurisdiction of this Court is only supervisory in nature and not that of an appellate court. Therefore, no interference under Article 227 of the Constitution is called for, unless this Court finds that the lower court or tribunal has committed manifest error, or the reasoning is palpably perverse or patently unreasonable, or the decision of the lower court or tribunal is in direct conflict with settled principle of law. 9. In the instant case, after considering the rival contentions with reference to the documents on record, the court below found that the plaintiff has made out a prima facie case and balance of convenience is also in his favour. Accordingly, by Exts.P4 and P5 orders, the court below granted temporary O.P(C) No.2159 of 2017 :-6-: prohibitory injunction in favour of the plaintiff. Though, Exts.P4 and P5 orders are dated 22.7.2017, the petitioner has approached this Court in this Original Petition filed under Article 227 of the Constitution of India only on 14.7.2017. 10. In this Original Petition it is contended, inter alia, that in view of the provisions under Section 17 of the SARFAESI Act, as amended by the Enforcement of Security Interest and Recovery of Debt Laws and Miscellaneous Provisions (Amendment) Act, 2016, a person claiming tenancy or leasehold right upon the secured asset can also file an application under Section 17, against any of the measures referred to in Section 13(4) taken by the secured creditor or his authorised officer to recover secured debts. Therefore, according to the petitioner, O.S.No.2405 of 2016 filed by the plaintiff is not maintainable in law and that, Exts.P4 and P5 orders are liable to be interfered with by this Court, invoking the supervisory jurisdiction under Article 227 of the Constitution of India. 11. In **Jai Singh v. Municipal Corporation of Delhi [(2010) 9 SCC 385]** , while considering the nature and scope of O.P(C) No.2159 of 2017 :-7-: the powers under Article 227 of the Constitution of India, the Apex Court held that, undoubtedly the High Court, under Article 227 of the Constitution, has the jurisdiction to ensure that all subordinate courts as well as statutory or quasi judicial tribunals, exercise the powers vested in them, within the bounds of their authority. The High Court has the power and the jurisdiction to ensure that they act in accordance with the well established principles of law. The High Court is vested with the powers of superintendence and/or judicial revision, even in matters where no revision or appeal lies to the High Court. The jurisdiction under this Article is, in some ways, wider than the power and jurisdiction under Article 226 of the Constitution of India. It is, however, well to remember the well known adage that greater the power, greater the care and caution in exercise thereof. The High Court is, therefore, expected to exercise such wide powers with great care, caution and circumspection. The exercise of jurisdiction must be within the well recognised constraints. It can not be exercised like a 'bull in a china shop', to correct all errors of the judgment of a court or tribunal, acting within the limits of its jurisdiction. This O.P(C) No.2159 of 2017 :-8-: correctional jurisdiction can be exercised in cases where orders have been passed in grave dereliction of duty or in flagrant abuse of fundamental principles of law or justice. 12. In **A.Venkatasubbaiah Naidu v. S.Chellappan [(2000) 7 SCC 695]** the Apex Court held that, any order passed in exercise of the powers under Order XXXIX, Rule 1 of the Code of Civil Procedure would be appealable as indicated in Order XLIII, Rule 1 of the Code. The choice is for the party affected by the order either to move the appellate court or to approach the same court which passed the ex parte order for any relief. Though no hurdle can be put against the exercise of the constitutional powers under Article 227 of the constitution of India, it is well recognised principle which gained judicial recognition that the High Court should direct the party to avail himself of such remedies, one or the other, before he resorts to a constitutional remedy. 13. Therefore, if the petitioner is aggrieved by Exts.P4 and P5 orders of the court below granting temporary prohibitory injunction in favour of the plaintiff, the legal remedy available is to challenge those orders in an appeal filed under Order XLIII, O.P(C) No.2159 of 2017 :-9-: Rule 1(r) of the Code. In Ext.P4 order, while granting temporary prohibitory injunction restraining the defendants from forcefully evicting the plaintiff from the house situated in the petition schedule property, without due process of law, till disposal of the suit, the court below relied on the decision in **Vishal N. Kalsaria v. Bank of India [(2016) 3 SCC 762]** wherein the Apex Court held that once tenancy is created, a tenant can be evicted only after following the due process of law, as prescribed under the provisions of the Rent Control Act. A tenant cannot be arbitrarily evicted by using the provisions of the SARFAESI Act as that would amount to stultifying the statutory rights of protection given to the tenant. The non obstante clause in Section 35 of the SARFAESI Act cannot be used to bulldoze the statutory rights vested on the tenants under the Rent Control Act. In the said decision, the Apex Court held further that, the expression 'any other law for the time being in force' as appearing in Section 35 of the said Act cannot mean to extend to each and every law enacted by the Central and State Legislatures. It can only extend to the laws operating in the same field. O.P(C) No.2159 of 2017 :-10-: 14. In such circumstance, Exts.P4 and P5 orders of the court below cannot be termed as orders passed in grave dereliction of duty or in flagrant abuse of fundamental principles of law or justice, warranting interference in exercise of the supervisory jurisdiction under Article 227 of the Constitution. Therefore, the challenge made against those orders in this Original Petition filed under Article 227 of the Constitution can only be repelled as not maintainable and I do so. 15. The other relief sought for in this Original Petition is a declaration that O.S.No.2405 of 2016 filed by the 2[nd] respondent herein is not maintainable in view of Section 34 of the SARFAESI Act and the amendment made to Section 17 of the said Act, by the Enforcement of Security Interest and Recovery of Debt Laws and Miscellaneous Provisions (Amendment) Act, 2016. As discernible from Exts.P4 and P5 orders and also the pleadings in this Original Petition, the question of maintainability of the suit by virtue of the amendment made to Section 17 of the said Act, by the Amendment Act of 2016, was never an issue before the court below. The question of maintainability of the suit in view of the O.P(C) No.2159 of 2017 :-11-: provisions under Section 34 of the SARFAESI Act has already been dealt with in Ext.P4 order, after referring to the decision of the Apex Court in **Vishal N. Kalsaria's case (supra)** . If the reasoning of the court below in Exts.P4 and P5 are erroneous, the petitioner has to challenge those orders in an appeal filed under Order XLIII, Rule 1(r) of the Code and the petitioner cannot seek a declaration, as sought for in this Original Petition filed under Article 227 of the Constitution of India. In the result, this Original Petition fails on the ground of maintainability and the same is accordingly dismissed. However, without prejudice to the right of the petitioner to challenge Exts.P4 and P5 in an appeal filed under Order XLIII, Rule 1(r) of the Code and also the right of the petitioner to raise the question of maintainability before the appropriate court. No order as to costs. Sd/- **ANIL K. NARENDRAN JUDGE** //True Copy// P.A to Judge ab