Dismissed

K.J.Santhosh Kumar v. South Indian Bank, Ltd.

Kerala HC16 Jun 2016WP(C)/6938/2016

Case brief

AI extract

What is this about?

The High Court held that tenancy claims cannot be adjudicated in a writ petition during SARFAESI proceedings. The remedy lies before the Chief Judicial Magistrate, and notices by the Advocate Commissioner are stayed for two weeks to allow petitioners to approach the Magistrate.

What did the court decide?

Directing notices by the Advocate Commissioner be kept in abeyance for two weeks to enable the petitioners to approach the Chief Judicial Magistrate for appropriate directions regarding their tenancy

K.J.Santhosh Kumar Vs South Indian Bank, Ltd. — Civil Procedure and Limitation | Kerala HC (2016)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE

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THURSDAY, THE 16TH DAY OF JUNE 2016/26TH JYAISHTA, 1938

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WP(C).No. 6938 of 2016 (N)

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PETITIONER(S) :

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K.J.SANTHOSH KUMAR, AGED 55 YEARS,

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S/O. JANARDHANAN, APATHESSERY HOUSE, SANADANA ROAD, PALLURUTHY, ERNAKULAM DISTRICT- 682 006.

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BY ADVS. SRI.R.ROHITH

SRI.MANOJ GEORGE

SMT.T.V.ASWATHY

RESPONDENT(S) :

1. SOUTH INDIAN BANK, LTD., AROOR BRANCH, ERNAKULAM, REPRESENTED BY MANAGING DIRECTOR- 688 534.

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2. STATE OF KERALA, REPRESENTED BY SECRETARY TO THE HOME DEPARTMENT, THIRUVANANTHAPURAM - 695 001

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3. HEMA RAVEENDRAN,

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D/O. RAVEENDRAN, MALIYEKKAL HOUSE, SANADANA ROAD, PALLURUTHY, ERNAKULAM DISTRICT - 682 006.

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4. RAJEEVAN RAVINDRAN, S/O. RAVEENDRAN, MALIYEKKAL HOUSE, SANADANA ROAD, PALLURUTHY, ERNAKULAM DISTRICT- 682 006.

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5. SANTHA RAVEENDRAN, W/O. RAVEENDRAN, MALIYEKKAL HOUSE, SANADANA ROAD, PALLURUTHY, ERNAKULAM DISTRICT- 682 006.

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M.A. VISWAMBARAN,

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S/O. APPU, MALIYEKKAL HOUSE, SANADANA ROAD, PALLURUTHY, ERNAKULAM DISTRICT- 682 006

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R1 BY ADV. SRI.GEORGE VARGHESE, S.C R2 BY GOVERNMENT PLEADER SMT. LILLY.K.T R3 TO R5 BY ADV. SRI.P.K.NIJOY

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 16-06-2016, ALONG WITH W.P(C).NO. 7152 OF 2016 AND W.P(C).NO. 11860 OF 2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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Msd.

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WP(C).No. 6938 of 2016 (N)

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APPENDIX

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PETITIONER(S)' EXHIBITS :

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EXHIBIT P1: A TRUE COPY OF THE OFFICIAL RECEIPT OF REVENUE DEPARTMENT, KOCHI MUNICIPAL CORPORATION FOR THE YEAR 2015-2016 ISSUED IN FAVOUR OF THE PETITIONER.

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EXHIBIT P2: A TRUE COPY OF THE NOTICE ISSUED BY THE ADVOCATE COMMISSIONER DATED 17/02/2016 TO THE PETITIONER.

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RESPONDENT(S)' EXHIBITS :

NIL

//TRUE COPY//

P.A.TO JUDGE.

Msd.

A.M. SHAFFIQUE, J.

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W.P.(C) Nos. 6938, 7152 & 11860 of 2016 -------------------------------------Dated this the 16^th day of June, 2016

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JUDGMENT

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These writ petitions are filed by persons claiming to be

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tenants of a commercial building which belong to a borrower against whom proceedings had been taken by the Bank under the SARFAESI Act. The Bank had approached the Chief Judicial Magistrate under Section 14 of the SARFAESI Act and the Chief Judicial Magistrate had appointed an Advocate Commissioner to take possession of the premises. When notice had been affixed in the premises by the Advocate Commissioner, these writ petitions are filed.

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If the petitioners are claiming that they are tenants of the building and they cannot be evicted by the proceedings under the SARFAESI Act, the remedy is to approach the Magistrate and seek appropriate orders.

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According to the respondent, no tenancy was

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W.P.(C) Nos. 6938, 7152 & 11860 of 2016

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created prior to the mortgage or after the mortgage and therefore, there was no reason to give the particulars to the Chief Judicial Magistrate.

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The learned counsel appearing for the borrower also submits that he had not created any tenancy as alleged and they are rant trespassers. It is also submitted that the petitioner in W.P.(C) No.7152 of 2016 is occupying a room which is not mortgaged to the Bank.

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These are not issues which can be adjudicated by this Court in a writ petition under Article 226 of the Constitution of India. The remedy of the petitioner is to approach the Chief Judicial Magistrate Court and seek appropriate directions by filing necessary application. If any application is filed claiming tenancy, the same shall be considered by the Chief Judicial Magistrate and appropriate orders may be passed in accordance with law. The notices issued by the Advocate Commissioner shall be kept in abeyance for a period of two

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W.P.(C) Nos. 6938, 7152 & 11860 of 2016

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weeks to enable the petitioner to approach the learned

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Magistrate and seek appropriate direction.

Sd/-

A.M. SHAFFIQUE

JUDGE

Scl/16.06.2016

W.P.(C) Nos. 6938, 7152 & 11860 of 2016

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K.J.Santhosh Kumar v. South Indian Bank, Ltd.

Case brief

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K.J.Santhosh Kumar v. South Indian Bank, Ltd.

Case brief

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