## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
## **PRESENT:**
## **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN**
**WEDNESDAY, THE 15TH DAY OF MARCH 2017/24TH PHALGUNA, 1938**
## **WP(C).No. 35500 of 2014 (J)**
**----------------------------**
## **PETITIONER :**
**---------------------**
**TOMY MATHEW, AGED 57, S/O.MATHEW, MADAPALLYMATTOM (HOUSE), MOOZHUR P.O, KOTTAYAM DISTRICT.**
## **BY ADVS.SRI.PRAVEEN K. JOY SRI.NIXON PAUL**
## **RESPONDENT(S):**
**--------------------------**
## **1. UNION OF INDIA,**
**REP. BY SECRETARY, MINISTRY OF BANKING & FINANCE, PARLIAMENT, NEW DELHI-1.**
**2. THE ASSISTANT GENERAL MANAGER, DHANALAKSHMI BANK, GRIEVANCE REDRESSAL COMMITTEE, CORPORATE OFFICE, HEAD OFFICE, TRISSUR.**
**3. THE AUTHORISED OFFICER, DHANALAKSHMI BANK, COTTON HILL, VAZHUTHAKADU, TRIVANDRUM -695 010**
**4. THE BRANCH MANAGER, DHANALAKSHMI BANK, AYARKUNNAM BRANCH,**
**KOTTAYAM DISTRICT.**
**5. MATHEW THOMAS, S/O.THOMAS, M/S.THIRUNILATHIL RUBBER TRADERS, THIRUNILATHIL HOUSE, PADUVA P.O, AYARKUNNAM, KOTTAYAM -686 564**
**R1 BY SRI.N.NAGARESH, ASSISTANT SOLICITOR GENERAL SRI.JAISHANKAR V. NAIR, CGC R2 TO R4 BY SRI.C.K.KARUNAKARAN,SC,DHANALAKSHMI BANK R5 BY ADV. SRIP.S.SUJETH**
**THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 15-03-2017, ALONG WITH WPC.NO. 10042/2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:**
**sts**
## **WP(C).No. 35500 of 2014 (J) ---------------------------------------**
## **APPENDIX**
## **PETITIONER(S)' EXHIBITS --------------------------------------**
**EXT.P1 - THE TRUE PHOTOCOPY OF THE LEASE DEED DATED 15-2-2013**
- **EXT.P2 - THE TRUE PHOTOCOPY OF THE LEASE AGREEMENT DATED 4-10-2014**
- **EXT.P3 - THE TRUE PHOTOCOPY OF THE 13(2) NOTICE DATED 3-12-2014**
- **EXT.P4 - THE TRUE PHOTOCOPY OF THE REPRESENTATION BEFORE THE 2ND RESPONDENT**
- **EXT.P5 - THE TRUE PHOTOCOPY OF THE OBJECTION TO THE RESPONDENT BANK**
- **EXT.P6 - TRUE COPY OF THE REPLY NOTICE OF THE RESPONDENT BANK DATED 14/01/2015.**
- **EXT.P7 - TRUE COPY OF THE PLAINT IN OS.NO.59/2015 BEFORE MUNSIFF'S COURT, KOTTAYAM.**
- **EXT.P8 - TRUE COPY OF THE REPORT FILED BY THE ADVOCATE COMMISSIONER IN OS.59/2015.**
- **EXT.P9 - TRUE COPY OF THE CMP NO.936/2015 IN CMP.NO.854/2015 BEFORE THE CHIEF JUDICIAL MAGISTRATE COURT, KOTTAYAM**
- **EXT.P10 - TRUE COPY OF THE ORDER IN CMP.NO.854/2015 BEFORE THE CHIEF JUDICIAL MAGISTRATE COURT, KOTTAYAM**
- **EXT.P11 - TRUE COPY OF THE AFFIDAVIT DATED 28/2/2015 IN CMP.854/15 OF CJM KOTTAYAM**
- **EXT.P12 - TRUE COPY OF THE ORDER DATED 3/7/2015 BEFORE MUNSIFF'S COURT, KOTTAYAM IN OS 59/2015.**
**RESPONDENT(S)' EXHIBITS**
**-----------------------------------------**
- **EXT.R4(A) TRUE COPY OF THE CONFIRMATION LETTER FROM THE 5TH RESPONDENT DATED 26/03/2013 ALONG WITH EXTENSION LETTER DATED 26/03/2013.**
**/TRUE COPY/**
**P.A.TO JUDGE**
**sts**
## **K. VINOD CHANDRAN, J.**
**===================== W.P.(C) Nos.35500 of 2014- J and 10042 of 2015- E ========================== Dated this the 15[th] day of March, 2017**
## **J U D G M E N T**
The petitioners have filed the above writ petitions on the contention that they are lessees in occupation of the residential buildings, mortgaged to the respondent Bank by the 5[th] respondent, the original borrower.
2. Both the petitioners contend that the petitioners were put in possession of the separate buildings as per lease deeds executed on 15.02.2013 produced as Ext.P1 in W.P.(C) No.35500 of 2014 and Ext.P2 in W.P.(C) No.10042 of 2015. There was also a renewal of such lease, respectively as per Exts.P2 and P3 in the respective writ petitions. Further, it is contended that there was a suit filed by the lessees as
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## W.P.(C) Nos.35500 of 2014
& 10042/2015
O.S Nos.59 and 60 of 2015, in which, there was a compromise entered into before the Taluk Legal Services Committee, which is produced as Ext.P12 in W.P.(C) No.35500 of 2014. A similar compromise is said to have been entered into in the other suit also. It is based on the said orders of compromise that the petitioners have been granted an interim stay in the writ petitions. The compromise was also to the effect that the lease would be continued for two years.
3. The learned Counsel appearing for the petitioners argue that Section 13(2) notice was issued on 03.12.2014 and even prior to that on 15.02.2013, both the petitioners were put in occupation as lessees. It is also contended that the petitioners had approached the Chief Judicial Magistrate Court, for an adjudication, as the law stood at the time of issuance of Section 13(2) notice. When the Bank moved under Section 13
(4) before the CJM for taking physical possession of the
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W.P.(C) Nos.35500 of 2014 & 10042/2015
mortgaged property the petitioners on threat of eviction, had also filed a suit, is the contention taken. The suit however only impleaded the owner and not the Bank. It is the submission of the Bank that it was a collusive affairs to pre-empt possession of the property.
4. The petitioners had approached this Court, while the matter was pending before the CJM and obtained an order of stay. As of now, by an amendment made on 16.09.2016, a tenants could also agitate their contentions against the physical possession attempted under Section 13(4), before the Debt Recovery Tribunal (DRT) as is provided under Section 17 (4A) of the Act. In such circumstance, if this Court is not inclined to allow the writ petitions, it is prayed that the petitioners be permitted to approach the DRT.
5. The learned Standing Counsel appearing for the
respondent Bank however would strongly oppose the prayer to
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W.P.(C) Nos.35500 of 2014 & 10042/2015
leave any liberty, especially since, the petitioners had chosen to approach this Court, even when a proceeding was pending before the CJM and had also not moved the DRT, despite an amendment having brought in on 16.09.2016. The learned Counsel would also raise serious doubts on the genuineness of the documents produced before this Court, which has been addressed in the counter affidavit filed itself.
6. A counter affidavit has been filed on 17.08.2015 contending that there was no tenant at the time of mortgage and it is also contended that the lease deeds were fraudulent and inadequately stamped and is also an unregistered document. It has been specifically alleged that the lease deeds are a result of a collusive fraudulent action by the petitioners and the 5[th] respondent, the original borrower.
7. As was pointed out by the learned Counsel for
the Bank, the lease deeds are executed on identical days in the
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W.P.(C) Nos.35500 of 2014 & 10042/2015
year 2013-14 and are in two stamp papers consecutively numbered, which by itself according to this Court does not raise any doubt as to the genuineness of the document. However, it is to be noticed that in neither of the stamp papers, the date of issuance is seen. The petitioners contend that the original lease deeds are in possession of the owner. The original borrower though impleaded and served with notice has not appeared before this Court. A suspicion having been raised as to the genuineness of the deeds definitely the petitioners had a duty to refute the contention raised and substantiate the contrary. Even if the owner,the lessor, retains the original an identical copy, showing the dates on which the stamp papers were issued should have been kept and produced by the lessees/petitioners.
8. It is also contended that the lease deeds are inadequate to commend a reservation of liberty before the
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## W.P.(C) Nos.35500 of 2014
& 10042/2015
DRT as of now, since the same has not been stamped in accordance with the Kerala Stamp Act. A lease deed (Article 33 of the Stamp Act) even if for a period less than one year has to be stamped as in the case of a Bottomry Bond (Article 14 of the Stamp Act), in which context, the proper stamp would be at the rate of Rs.5 for every Rs.100/- or part thereof of the amount or the value secured. The lease as seen from the documents produced is on the strength of an advance of Rs.81,000/- and a monthly rent of Rs.9,000 and Rs.10,350/-.
9. Be that as it may, it is to be noticed that the impact of Section 65A of the Transfer of Properties Act, 1882 was considered by the Hon'ble Supreme Court in **Harshad Govardhan Sondagar** v. **International Asset Reconstruction Company Ltd. [2014 (3) KLT 357 (SC)], Vishal N. Kalsaria v. Bank of India - 2016 (1) KLT 623 (SC)** , and by this Court in **Kelukutty P.M v. Young Men's Christian Association [2016**
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W.P.(C) Nos.35500 of 2014 & 10042/2015
**(1) KHC 493], Kelukutty P.M v. Young Men's Christian Association [2016 (1) KHC 853].** The principles that can be culled out from the aforesaid decisions are that despite a mortgage having been validly created, the mortgagor would be at liberty to lease out the building in the mortgaged land if there is nothing contrary provided in the mortgage deed. The lease if granted shall be in consonance with sub-section (2) of Section 65A of the Act of 1882, any of which condition could also be waived by a specific recital in the mortgage deed.
10. In the context of a contrary intention being specified in the mortgage deed as to the right under Section 65A being taken away then the lease could not at all be made. Further if the conditions in sub-section(2) of Section 65A of the Act of 1882, are modified or altered the lease could only be in accordance with such modification or alteration. The non-registration of a deed conferring tenancy on a person
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W.P.(C) Nos.35500 of 2014 & 10042/2015
would also be of no consequence, since the same could be used for collateral and the tenant could be purposes considered as a person, who is holding over month to month, in which event, the protection under the Rent Control Act would not be taken away.
11. In the present case, the impact of the decisions need not be considered since, Ext.R4(a) as produced by the Bank in W.P.(C) No.35500 of 2014 indicates a specific condition as seen from clause (4), which is extracted here under:-
4. We have not entered into any agreement for transfer or alienation of the mortgaged property/ies. We waive the application of Sections 61, 65A and 67A of the Transfer of Properties Act, 1882.
12. Exhibit R4(a) is the letter of confirmation issued
by the mortgagor; in which the application of Section 61, 65A and 67A of the Act has been waived. There being a contract to the contrary,or a contrary intention having been specifically
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& 10042/2015
expressed by the mortgagor there could have been no lease granted of the properties mortgaged to the respondent Bank.
Looking at the totality of the circumstances, this Court is not inclined to grant any remand and the writ petitions are found to be without merit and the same are dismissed. No costs.
Sd/-
**K. VINOD CHANDRAN, JUDGE**
SB/17/03/2017
// true copy //
P.A to Judge
