IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
&
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
TUESDAY, THE 04TH DAY OF FEBRUARY 2020 / 15TH MAGHA, 1941
## WA.No.209 OF 2020
AGAINST THE ORDER DATED 14.11.2019 IN I.A.NO. 1/2019 IN WP(C) 24940/2019(N) OF HIGH COURT OF KERALA
## APPELLANTS/PETITIONERS/RESPONDENTS 1 & 2:
1 SUDHA C. AGED 49 YEARS W/O.VENUGOPAL, KACHERICAL HOUSE, PUDUCODE, THACHANADI, PALAKKAD.
2 VENUGOPAL P., AGED 60 YEARS S/O.PAZHANIMALA, H/O.SUDHA C., KACHERICAL HOUSE, PUDUCODE, THACHANADI, PALAKKAD.
BY ADV. SRI.P.R.VENKATESH
## RESPONDENTS/PETITIONER/RESPONDENTS 1 & 2:
1 M/S.MUTHOOT HOUSING FINANCE CO.LTD., TC NO.14/2074/7, MUTHOOT CENTRE, PUNNEN ROAD, THIRUVANANTHAPURAM-695 034, HAVING BRANCH MANAGER AT FIRST FLOOR, AUGIN GOLDEN JUBILEE COMPLEX, WEST FORT, POOTHOLE P.O., THRISSUR, REPRESENTED BY ITS PoA HOLDER ARUN CHANDRE, S/O.PRATHAPA CHANDRAN S.T., AGED 27 YEARS.
- 2 SUPERINTENDENT OF POLICE, OFFICE OF THE SUPERINTENDENT OF POLICE, PALAKKAD-678 010.
- 3 STATION HOUSE OFFICER, VADAKKENCHERRY POLICE STATION, VADAKKANCHERRY-680 582.
SR. GOVERNMENT PLEADER, SRI.TEK CHAND FOR R2 AND R3, SRI. SABU S.KALLARAMOOLA FOR R1
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 04.02.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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## **Dated this the 4[th] day of February, 2020. JUDGMENT**
## **S. Manikumar, CJ**
Instant writ appeal is directed against the order dated 14.11.2019 in I.A. No. 1 of 2019 in W.P.(C) No. 24940 of 2019, whereby the writ court declined to grant extension of time for the repayment of the outstanding dues payable to respondent No.1, M/s. Muthoot Housing Finance Company Ltd., Thrissur.
2. The aforesaid writ petition has been filed challenging Ext.P4 order and seeking a direction to respondents 2 and 3 herein to evict the appellants from the schedule property in Ext.P3 petition and restore possession of the same to the respondent firm. Learned single Judge was pleased to dispose of the writ petition permitting the appellants to pay the outstanding amount in instalments. It was also ordered that in the event of default of the undertaking, the respondent firm is at liberty to file a request for restitution of possession before respondents 2
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and 3 herein, who will deliver vacant possession of the mortgaged property within 7 days of filing of the petition by the respondent firm. Thereafter, the appellants filed I.A. No. 1 of 2019 seeking extension of time. But, the learned single Judge declined the same. Hence, this writ appeal.
3. Sri. P.R Venkatesh, learned counsel for the appellant, submitted that substantial investment has been made in the said property and that if sufficient time is given, the appellants would make payments towards discharge of money. Materials on record discloses that M/s. Muthoot Housing Finance Co. Ltd., Thrissur, respondent No.1, has filed C.M.P No. 2384 of 2019 in CMP No. 4845 of 2016 before the learned Chief Judicial Magistrate, Palakkad for a direction to Superintendent of Police, Palakkad and Station House Officer, Vadakkencherry, respondents 3 and 4 therein respectively, to evict the appellants herein from the schedule property and to hand over the vacant possession to the Muthoot Housing Finance Company Ltd.
After considering the supporting materials, learned Chief Judicial Magistrate, Palakkad, by order dated
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## 30.07.2019, ordered thus:
“3. The records show that CMP 4845/16 was allowed. In the said CMP Advocate Sameera was appointed as Advocate Commissioner. The said CMP was closed as per order dated 24.02.2017 on the basis of the report of the Advocate Commissioner, as it was reported that the possession of the property was handed over to the petitioner. Now, in the present petition, it is contended that the respondents 1 and 2 have trespassed into the property and had started to reside there. It is also contended that the officers of the petitioner firm were threatened by the respondents. Though a complaint was filed before the 4[th] respondent, no action has been initiated. The counsel for petitioner relied on Federal Bank Limited Vallithode Branch Kozhikode vs. Thahira and others reported in 2016 KHC 773. In the light of the principle discussed in the above decision, I consider that prayer has only to be allowed.
In the result petition is allowed.
Issue direction to the earlier Advocate Commissioner. A batta of Rs.5000/- shall be paid to the Advocate Commissioner.
The respondents 3 and 4 are directed to render police assistance for ensuring restoration of the property, if sought by the Advocate Commissioner.”
4. Aggrieved by the said order, M/s. Muthoot Housing Finance Co. Ltd. has filed W.P.(C) No. 24940 of 2019 seeking a writ of certiorari to quash Ext.P4 order of the Chief Judicial Magistrate and for a consequential direction
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to respondents 3 and 4 to evict the appellants.
5. Eventhough the copy of the said judgment in W.P. (C) No. 24940 of 2019 is not produced, during the course of hearing, the learned counsel has handed over a copy of the same. On a perusal of the same, it appears that the said writ petition was disposed of on basis of the submission made by learned counsel for respondents 1 and 2 therein, the appellants herein, that they are prepared to deposit 1/3[rd] of the outstanding amount as on 26.09.2019 (1/3rd of Rs.18,22,700/-), on or before 30.10.2019 and the balance 2/3[rd] in two monthly instalments payable on or before 01.12.2019 and 01.01.2020. Operative portion of the said judgment reads thus:
“4. The statement is accepted and the writ petition is disposed of by this order:-
(a) The respondents 1 and 2 are directed to deposit 1/3rd of the outstanding amount (1/3rd of Rs.18,22,700/-) on or before 30.10.2019 and the balance 2/3rd in two monthly installments, viz., on or before 01.12.2019 and 01.01.2020.
b) Respondents 1 and 2, if commit default of the above undertaking, the petitioner is given liberty to file a request for restitution of possession before the third and fourth respondents, the third and fourth respondents will deliver vacant possession of mortgaged property within seven days from the date of filing of petition by the petitioner.”
c) The instant order is made with the consent of the counsel appearing for both the parties.”
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**6. M** aterial on record further discloses that having enjoyed the benefit of indulgence granted by the writ court as stated supra, the appellants have not complied with the same which was granted on the basis of the assurance made by them. Instead, they have chosen to file I.A.No. 1 of 2019 in the aforesaid W.P.(C) seeking extension of time. The reasons assigned in paragraph 4 of the affidavit filed in support of the petition for extension of time read thus:
“It is submitted that though the petitioners have made earnest effort to arrange the amount for depositing 1/3[rd] of the total outstanding yet they failed to raise the required amount to deposit as directed by this Hon'ble Court in the above Writ Petition. It is further submitted that the non-compliance of the aforementioned direction by this Hon'ble Court is not wilful or deliberate but due to the financial stringency now the petitioners are submerged with. In the aforesaid circumstances the petitioners/respondents 1 and 2 most humbly pray that this Hon'ble Court may be pleased to grant one more opportunity by granting one month's time to comply with the directions in the aforesaid writ petition.”
7. Refuting the averments and the prayers sought for, writ court, by order dated 14.11.2019, declined to grant extension of time and accordingly dismissed the petition. Though the learned counsel for the appellants assailed the
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correctness of the order in I.A. No. 1 of 2019 on the grounds raised in the memorandum of appeal, we are not inclined to accept the same. After the Bank has taken possession of the said property mortgaged, the appellants seemed to have trespassed into the property and started residing there.
A contention has been also raised before the learned Chief Judicial Magistrate, Palakkad that the officers of the respondent firm were threatened and therefore, a complaint was filed before the Station House Officer, Vadakkencherry. Adverting to the aforesaid facts and placing reliance on the decision in **Federal Bank Limited**
**Vallithode Branch, Kozhikode v. Thahira and others** [2016 KHC 773], the learned Chief Judicial Magistrate has passed an order of eviction directing police assistance for ensuring restoration of the property, if sought for by the Advocate Commissioner.
8. It is trite law that relief under Article 226 of the Constitution of India can be extended only if there is equity. Having regard to the conduct of the appellants, no equity can be extended to them. However, learned counsel for the
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appellants submitted that if sufficient time is given to them, the entire liability would be discharged by them. Eventhough the writ court has already considered the said submission and shown some indulgence, the appellants have failed to comply with the same. Borrowing and repayment of the loan amount, are purely matters of contract, based on the consensus between the parties. This court, by exercising the powers under Article 226 of the Constitution of India, cannot issue any direction to the Bank to accept the loan amount in instalments, We do not find any merit in this appeal warranting interference of this Court.
Accordingly, this writ appeal is dismissed.
sd/- **S. MANIKUMAR, CHIEF JUSTICE.**
sd/- **SHAJI P. CHALY, JUDGE.**
Rv
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