WP(C).10172/2020 (V) and WP(C).9599/2020 (Y) – JM Financial Asset Reconstruction Company Limited v Station House Officer, Santhanpara Police Station, Idukki; Circle Inspector of Police, Santhanpara Police Station; Superintendent of Police, Painavu; Director General of Police, Kerala; Abdul Kader; State of Kerala; District Superintendent of Police, Thodupuzha; District Superintendent of Police, Thrissur; Sub Inspector of Police, Santhanpara; Dr. John Joseph; Susy John; Soji John; Abi Joji; Additional R9 (JM Financial ARC) and related respondents.

[ WP(C).10172/2020, WP(C).9599/2020 ] 1 **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE** **MONDAY, THE 06TH DAY OF JULY 2020 / 15TH ASHADHA, 1942** ## **WP(C).No.10172 OF 2020(V)** ## **PETITIONER:** **JM FINANCIAL ASSET RECONSTRUCTION COMPANY LIMITED, (FORMERLY KNOWN AS JM FINANCIAL ASSET RECONSTRUCTION COMPANY PRIVATE LIMITED), A COMPANY INCORPORATED UNDER THE COMPANIES ACT, 1956 AND REGISTERED UNDER SECTION 3 OF THE SARFAESI ACT, 2002 AS AN ASSET RECONSTRUCTION COMPANY HAVING ITS REGISTERED OFFICE AT 7TH FLOOR, CNERGY, APPASAHEB MARATHE MARG, PRABHADEVI, MUMBAI-400 025 AND AMONGST OTHERS HAVING ANOTHER OFFICE AT 3RD FLOOR, B WING, PLOT NO.68E, SUASHISH IT PARK, OPP TATA STEEL, OFF DATTAPADA ROAD, BORIVALI EAST, MUMBAI-400 066 AND ACTING IN ITS CAPACITY AS TRUSTEE OF JMF ARC-FEDERAL BANK MARCH, 2013-TRUST RERPESENTED BY SENIOR ASSOCIATE/AUTHORISED SIGNATORY VAIBHAV SHETTY.** **BY ADVS. SRI.MADHU RADHAKRISHNAN SRI.M.D.JOSEPH SRI.NELSON JOSEPH SHRI.DEEPAK ASHOK KUMAR** ## **RESPONDENTS:** |**1**|**STATION HOUSE OFFICER**| |---|---| ||**SANTHANPARA POLICE STATION, IDUKKI, PIN-685 619.**| |**2**|**THE CIRCLE INSPECTOR OF POLICE**| ||**SANTHANPARA POLICE STATION, IDUKKI, PIN-685 619.**| |**3**|**SUPERINTENDENT OF POLICE**| ||**PAINAVU, IDUKKI, PIN-685 603.**| |**4**|**DIRECTOR GENERAL OF POLICE**| ||**KERALA POLICE HEAD QUARTERS, THIRUVANANTHAPURAM-695**| ||**010**| [ WP(C).10172/2020, WP(C).9599/2020 ] 2 **5** **ADDL.ABDUL KADER AGED 50 YEARS, S/O VEERAN HAJI, CHERIYAN PARAMBIL (SOURYANPARAMPIL HOUSE), THALASSERY.P.O, DESAMANGALAM, THRISSUR DISTRICT. (ADDL. R5 IS IMPLEADED AS PER ORDER DATED 11.06.2020 IN I.A.NO.1/2020 IN W.P(C) NO. 10172/2020)** **BY GOVERNMENT PLEADER BY ADV. C.RAJENDRAN** **ADV. SRI. K V SOHAN, STATE ATTORENY FOR STATE** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 06.07.2020, ALONG WITH WP(C).9599/2020(Y), THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** [ WP(C).10172/2020, WP(C).9599/2020 ] 3 # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE** **MONDAY, THE 06TH DAY OF JULY 2020 / 15TH ASHADHA, 1942** ## **WP(C).No.9599 OF 2020(Y)** ## **PETITIONER:** **ABDUL KHADAR, AGED 50 YEARS S/O.VEERAN HAJI, CHURIYANPARAMPIL, (SOURYANPARAMPIL) HOUSE, THALASSERY P.O., DESAMANGALAM, THRISSUR DISTRICT.** **BY ADV. SRI.C.RAJENDRAN** ## **RESPONDENTS:** |**1**|**THE STATE OF KERALA,**| |---|---| ||**REPRESENTED BY THE ADDITIONAL CHIEF SECRETARY**| ||**(HOME) SECRETARIAT, THIRUVANANTHAPURAM - 695 001.**| |**2**|**DISTRICT SUPERINTENDENT OF POLICE,**| ||**THODUPUZHA ROAD, PAINAVU, IDUKKI - 685 603.**| |**3**|**THE DISTRICT SUPERINTENDENT OF POLICE,**| ||**KALYAN NAGAR, AYYANTHOLE, THRISSUR - 680 003.**| |**4**|**THE SUB INSPECTOR OF POLICE,**| ||**SANTHANPARA POLICE STATION, IDUKKI DISTRICT - 685**| ||**619.**| |**5**|**DR.JOHN JOSEPH,**| ||**S/O.JOSEPH, AGED 72 YEARS, VILAVINAL ASHRIVADH**| ||**HOUSE, 32/2611, NATIONAL HIGH-WAY PALARIVATTOM,**| ||**KOCHI - 682 025.**| |**6**|**SUSY JOHN,**| ||**W/O.JOHN JOSEPH, AGED 69 YEARS, VILAVINAL ASHRIVADH**| ||**HOUSE, 32/2611, NATIONAL HIGH-WAY PALARIVATTOM,**| ||**KOCHI - 682 025.**| [ WP(C).10172/2020, WP(C).9599/2020 ] 4 **7 SOJI JOHN, S/O.JOHN JOSEPH, AGED 45 YEARS, ASIRVADH HOUSE, SALAIPPARA KARA, SANTHANPARA VILLAGE, UDUMPUNCHOLA TALUK, IDUKKI DISTRICT, UDUMPUMCHOLA P.O., PIN - 685 619.** **8 ABI JOJI, W/O.JOJI JOHN, AGED 38 YEARS, VILAVINAL ASIRVADH HOUSE, SALAIPPARA KARA, SANTHANPARA VILLAGE, UDUMPUMCHOLA TALUK, IDUKKY DISTRICT, UDUMPUMCHOLA P.O., PIN - 68561.** **9 ADDL.R9. JM FINANCIAL ASSET RECONSTRUCTION COMPANY LIMITED, (FORMERLY KNOWN AS JM FINANCIAL ASSET RECONSTRUCTION COMPANY PRIVATE LIMITED), A COMPANY INCORPORATED UNDER THE COMPANIES ACT, 1956 AND REGISTERED UNDER SECTION 3 OF THE SARFAESI ACT, 2002 AS AN ASSET RECONSTRUCTION COMPANY HAVING ITS REGISTERED OFFICE AT 7TH FLOOR, CNERGY, APPASAHEBMARATHEMARG, PRABHADEVI, MUMBAI - 400 025 AND AMONGST OTHERS HAVING ANOTHER OFFICE AT 3RD FLOOR, B WING, PLOT NO.68E, SUASHISH IT PARK, OPP TATA STEEL, OFF DATTAPADA ROAD, BORIVALI EAST, MUMBAI - 400 066 AND ACTING IN ITS CAPASITY AS TRUSTEE OF JMF ARC - FEDERAL BANK MARCH, 2013 - TRUST REPRESENTED BY SENIOR ANALYST AND AUTHORISED OFFICER VAIBHAV SHETTY.** **ADDITIONAL R9 IS IMPLEADED AS PER ORDER DATED 11/6/2020 IN I.A.1/2020 IN WP(C).** **BY GOVERNMENT PLEADER BY SRI.K.V.SOHAN, STATE ATTORNEY BY ADV. SRI.S.RENJITH BY ADV. MADHU RADHAKRISHNAN** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 06.07.2020, ALONG WITH WP(C).10172/2020(V), THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** [ WP(C).10172/2020, WP(C).9599/2020 ] 5 ## **JUDGMENT** ## **Dated this the 6th day of July 2020** These writ petitions are filed against police harassment as well as for police protection. WP(C) No.10172/2020 is filed by a company within the meaning of Section 3 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (hereinafter referred to as “SARFAESI Act”) against police harassment as well as for police protection. WP(C) No.9599/2020 is filed by Mr.Abdul Khadar against members of the alleged partnership firm as well as the company. These matters are taken up together as the point for consideration is overlapping in both the matters. 2. According to the company, they have taken over the secured asset from the Federal Bank, of the property mortgaged by respondents 5 to 8 in WP(c) No.9599 of 2020 and they have initiated steps under the SARFAESI Act, 2002 to take possession of the secured asset. It is also submitted by the respondents 5 to 8 in WP(c) No.9599/2020 that they have surrendered the secured asset to [ WP(C).10172/2020, WP(C).9599/2020 ] 6 the company in order to save the residential building belonged to the aforesaid persons. 3. The case of Mr.Abdul Khadar, who is the writ petitioner in WP(C) No.9599/2020 is that he entered into a partnership on 06.01.2014 with respondents 5 to 8 in WP(C) No.9599/2020. According to Abdul Khadar, this property belonged to the partnership firm originally consisting of the respondents 5 to 8. Thereafter, Abdul Khadar was inducted on 06.01.2014 and on 20.01.2014 all the partners retired and the asset became the sole property of Abdul Khadar. According to him, he was put in possession of the secured asset. 4. It is the case of Abdul Khadar that the secured asset being an agricultural property, no proceedings can be initiated under the SARFAESI Act. The State Attorney entered appearance in this matter, also supported the case of Abdul Khadar of that property is an agricultural property and that the company has no authority to proceed against such secured asset in the light of the dictum laid down by the Division Bench of this Court in _**Muhammed Basheer**_ [ WP(C).10172/2020, WP(C).9599/2020 ] 7 ## _**K.P. v. Deputy General Manager, Kannur District Coop. Bank Ltd.**_ [2010 (2) KHC 385] . 5. On the other hand, the learned counsel for the petitioner as well as the respondents 5 to 8 in WP(C) No.9599/2020 disputed the nature and character of the property as an agricultural property. According to them, the company is having every right to proceed against the property under the SARFAESI Act. It is also contended by the respondents 5 to 8 that the property never belonged to any partnership firm and it belongs to the individuals as co-owners as referred above. 6. This Court is called upon to decide the police protection matter in the background of the aforesaid circumstances. The company filed the writ petition against the police harassment as well as police protection in the wake of the resistance made by Abdul Khadar. According to them, they exercised the statutory power under the SARFAESI Act and, if any person is aggrieved by such action, the remedy of that person is to approach the Debts Recovery Tribunal by filing an appeal under Section 17 of the SARFAESI Act. [ WP(C).10172/2020, WP(C).9599/2020 ] **==> picture [8 x 9] intentionally omitted <==** On the other hand, the learned counsel for Abdul Khadar submits that in the guise of exercising the statutory power company is proceeding against the agricultural property without any authority. The State Attorney also supported this stand. 7. The Apex Court in _**Authorized Officer SBT and Another Vs Mathew K.C. [**_ (2018)3 SCC 85]; held that the High Court of Kerala shall not invoke its power under Article 226 of the Constitution of India to interfere with any proceedings initiated under the SARFAESI Act. The judgment of the Division Bench, therefore, cannot be pressed to support the argument that the SARFAESI proceedings can be interfered by invoking power under Article 226 of the Constitution of India. Further, there is a serious dispute in regard to the nature of the property. This has to be examined by the competent Tribunal. 8. Following the Apex Court judgment, another Division Bench of this Court in W.A.No.2007/2019 also taken the view that power under Article 226 of the Constitution of India shall not be invoked to interfere with any proceedings under the SARFAESI Act. [ WP(C).10172/2020, WP(C).9599/2020 ] **==> picture [8 x 9] intentionally omitted <==** That apart in the police protection jurisdiction, this Court also cannot go into such issues. The question is whether Abdul Khadar is entitled for police protection. In the light of fact that actions are initiated by the company under the statutory provisions, this court cannot indirectly interdict such actions with the aid of police protection. Therefore, prayer of Abdul Khadar is declined. So far as the Company's claim is concerned, if they find any resistance, they are free to invoke the remedy under Section 14 of the SARFAESI Act before the Chief Metropolitan Magistrate/District Magistrate. The police shall not interfere in these matters except based on the orders of such Magistrate. These writ petitions are disposed of as above. **Sd/-** **A.MUHAMED MUSTAQUE** **JUDGE** SAS/06/07/2020 [ WP(C).10172/2020, WP(C).9599/2020 ] 10 ## **APPENDIX OF WP(C) 10172/2020** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 A TRUE COPY OF THE LETTER DATED 20.9.2019 ADDRESSED TO THE PETITIONER BY THE PARTNERS OF THE GIE.** **EXHIBIT P2 TRUE COPY OF THE POSSESSION NOTICE OF THE PETITIONER DATED 9.10.2019.** - **EXHIBIT P3(A) TRUE COPY OF THE NEWS PUBLISHED IN THE NEWSPAPER DECCAN CHRONICLE DATED 16TH OCTOBER, 2019.** - **EXHIBIT P3(B) TRUE COPY OF THE NEWS PUBLISHED IN THE NEWSPAPER JANAYUGAM.** - **EXHIBIT P4 A TRUE COPY OF THE LETTER DATED 16.10.2019 ISSUED BY THE PETITIONER APPOINTING THE CUSTODIAN.** - **EXHIBIT P5 TRUE COPY OF THE LAWYER NOTICE DATED 18.5.2020 ISSUED BY THE PETITIONER TO THE 3RD RESPONDENT.** - **EXHIBIT P6 TRUE COPY OF THE AWARD DATED 22.02.2012 PASSED BY THE LOK ADALATH** - **EXHIBIT P7 TRUE COPY OF THE RELEVANT PAGES OF THE ASSIGNMENT DEED EXECUTED BY THE FEDERAL BANK TO THE PETITIONER** - **EXHIBIT P8 TRUE COPY OF THE ADVOCATE COMMISSIONER'S REPORT SUBMITTED IN C M ARB 28/20** - **EXHIBIT P9 TRUE COPY OF THE REPORT MADE BY THE 1ST RESPONDENT TO THE SDM OBTAINED UNDER THE RTI ACT** **EXHIBIT P10 TRUE COPY OF THE ORDER OF THE SDM OBTAINED UNDER THE RTI ACT EXHIBIT P11 TRUE COPY OF THE INTERIM ORDER OF STAY** [ WP(C).10172/2020, WP(C).9599/2020 ] 11 **PASSED BY THIS HON'BLE COURT IN ARB A NO.18 RESPONDENTS' EXHIBITS:-** - **EXHIBIT R5A TRUE COPY OF THE RELEVANT PAGE OF THE REGISTER OF FIRMS MAINTAINED AT THE OFFICE OF THE REGISTRAR OF FIRMS AS PER SECTION 59 OF THE INDIAN PARTNERSHIP ACT, 1932 PERTAINING TO GIE PLANTATIONS REGISTER NO.50/2014** - **EXHIBIT R5B TRUE PHOTOSTAT COPY OF THE IT RETURNS OF THE FIRM GIE PLANTATIONS FOR THE ASSESSMENT YEAR 2019-2020** **EXHIBIT R5C TRUE COPY OF THE BI-PARTY SETTLEMENT DATED 18/8/2014** - **EXHIBIT R5D TRUE COPY OF THE INSPECTION ORDER OF INSPECTOR OF PLANTATIONS, VANDANMEDU, NEDUMKANDAM DATED 24.5.2019 ISSUED TO THIS RESPONDENT** - **EXHIBIT R5E TRUE COPY OF THE ORDER OF THE DISTRICT LABOUR OFFICER, IDUKKI IN IR 2011/2018 DATED 29/05/2019** - **EXHIBIT R5F TRUE PHOTOSTAT COPY OF THE LETTER DATED 12/12/2019 ISSUED BY ADVOCATE K.J.BENNY, THRISSUR TO THE PETITIONER** - **EXHIBIT R5G TRUE PHOTOSTAT COPY OF THE LETTER DATED 27/12/2019 ISSUED BY THE PETITIONER TO ADVOCATE K.J.BENNY, THRISSUR** - **EXHIBIT R5H TRUE PHOTOSTAT COPY OF THE REMAND REPORT IN CRIME NO.1622/15 OF ARANMULA POLICE STATION, PATHANAMTHITTA DATED 20/10/2015** - **EXHIBIT R5I TRUE PHOTOSTAT COPY A NEWS PAPER REPORT PUBLISHED IN MATHRUBHUMI.COM, AN ON-LINE DAILY** **EXHIBIT R5J TRUE PHOTOSTAT COPY OF THE ORDER IN EA 849/2017 OF IIND ADDITIONAL SUB COURT, ERNAKULAM DATED 11/12/2018** [ WP(C).10172/2020, WP(C).9599/2020 ] 12 **EXHIBIT R5K** **EXHIBIT R5L** **EXHIBIT R5M** **EXHIBIT R5N** **EXHIBIT R5O** **EXHIBIT R5P** **TRUE COPY OF THE RECEIPT DATED 16/05/2020 ISSUED FROM SANTHANPARA POLICE STATION** **TRUE COPY OF THE COMPLAINT DATED 16/05/2020 PREFERRED BY THIS RESPONDENT BEFORE FOREST OFFICER, SANTHANPARA** **TRUE COPY OF THE COMPLAINT PREFERRED BY THIS RESPONDENT BEFORE THE DGP DATED NIL** **THE PHOTOSTAT COPY OF THE DEPOSIT RECEIPT OF THE REVOLVER OF THIS RESPONDENT DATED 03.06.2020 ISSUED FROM COCHIN ARMORY** **THE TRUE PHOTOSTAT COPY OF THE PRELIMINARY ORDER UNDER SECTION 111 CRPC PASSED BY SUBDIVISIONAL MAGISTRATE, DEVIKULAM ON 02/06/2020** **THE COPY OF THE ORDER IN IA.NO.1/2020 IN CMA (ARB) NO.28/2020 DATED 08/06/2020 OF DISTRICT COURT, THODUPUZHA** [ WP(C).10172/2020, WP(C).9599/2020 ] 13 ## **APPENDIX OF WP(C) 9599/2020** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 A TRUE PHOTOCOPY OF THE RE-CONSTITUTION DEED DATED 06/01/2014.** - **EXHIBIT P2 A TRUE PHOTOCOPY OF THE RETIREMENT DEED DATED 20/01/2014.** - **EXHIBIT P3 A TRUE PHOTOCOPY OF THE ORDER IN IA NO.3269/2018 IN OS 517/2018 DATED 21/12/2018.** - **EXHIBIT P4 A TRUE PHOTOCOPY OF THE ORDER IN IA NO.8511/2019 IN CMA (ARB) NO.1060/2019 DATED 17/03/2020.** - **EXHIBIT P5 A TRUE PHOTOCOPY OF THE ORDER IN IA NO.8515/2019 IN CMA(ARB) NO.1001/2019 DATED 17/03/2020.** - **EXHIBIT P6 A TRUE PHOTOCOPY OF THE ARMS LICENSE NO.1136/TPY ISSUED BY ARMS LICENSE ISSUANCE AUTHORITY, THRISSUR DATED 18/10/2019.** - **EXHIBIT P7 A TRUE PHOTOCOPY OF THE RECEIPT DATED 18/01/2019 ISSUED FROM SHANTHANPARA POLICE STATION.** - **EXHIBIT P8 A TRUE PHOTOCOPY OF THE ORDER OF KERALA STATE HUMAN RIGHTS COMMISSION H.R.M.P.NO.2240/11/13/2020 DATED 19/03/2020.** - **EXHIBIT P9 A TRUE PHOTOCOPY OF THE PETITION SUBMITTED BY THE PETITIONER TO THE THIRD RESPONDENT DATED 17/3/2020.** - **RESPONDENTS' EXHIBITS:-** - **ANNEXURE R9(a) TRUE COPY OF THE PHYSICAL POSSESSION NOTICE OF THE PETITIONER DATED 9/10/2019** **ANNEXURE R9(b) TRUE COPY OF THE NEWS PUBLISHED IN THE NEWSPAPER DECCAN CRONICLE DATED 16TH OCTOBER, 2019 ANNEXURE R9(c) TRUE COPY OF THE NEWS PUBLISHED IN THE NEWSPAPER JANAYUGAM** [ WP(C).10172/2020, WP(C).9599/2020 ] 14 **ANNEXURE R9(d) A TRUE COPY OF THE LETTER DATED 16/10/2019 ISSUED BY THE PETITIONER APPOINTING THE CUSTODIAN** **ANNEXURE R9(e) A TRUE COPY OF THE REPORT OF THE ADVOCATE COMMISSIONER DATED 29/05/2020 IN CMA (ARB)28/2020** **ANNEXURE R1 (a) TRUE COPY OF THE MEMORANDUM OF BY-PARTY SETTLEMENT DATED 18/08/2014 ENTERED INTO BETWEEN SRI.ABDUL KHADER AND LABOUR UNION REPRESENTATIVES.**