Dismissed

Narayaniamma v. District Collector ( Appellate Tribunal Kerala Maintenance and Welfare of Parents and Senior Citiz

Kerala HC12 Apr 2018WP(C)/826/2018

Case brief

AI extract

What is this about?

The petitioner, a senior citizen guarantor, filed a writ petition to prevent eviction from her residential property under the Senior Citizen Act, 2007, claiming inconsistency with SARFAESI Act proceedings. The High Court dismissed the petition, holding that the Senior Citizen Act does not override voluntary contractual obligations and that relatives have a duty to maintain her if evicted.

What did the court decide?

Petitioner permitted to reside in the house till the auction is finalised, after which the bank is free to proceed with eviction and property realization.

Narayaniamma Vs District Collector (… — Pension and Retirement Benefits | Kerala HC (2018)

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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.MUHAMED MUSTAQUE

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THURSDAY, THE 12TH DAY OF APRIL 2018 / 22ND CHAITHRA, 1940

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WP(C).No. 826 of 2018

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PETITIONER

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NARAYANIAMMA, W/O.RAMAN NAIR, AGED 76 YEARS, RESIDING AT MUNDACKAPPARAMBIL HOUSE, CHERUVATHUR P.O., ERAMALLUR, KOTHAMANGALAM, ERNAKULAM 686 691.

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BY ADV.SRI.SHAIJAN JOSEPH

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RESPONDENTS:

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1. DISTRICT COLLECTOR ( APPELLATE TRIBUNAL KERALA MAINTENANCE AND WELFARE OF PARENTS AND SENIOR CITIZENS ACT, 2007) ERNAKULAM DISTRICT, CIVIL STATION, KAKKANADU, ERNAKULAM. 682 030

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2. BANK MANAGER STATE BANK OF INDIA, AMBALAMEDU BRANCH (1108) F.A.C.T MAIN GATE, AMBALAMEDU P.O., ERNAKULAM 682 303.

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3. K.K.ABRAHAM, S/O.K.G.KURIAKOSE, KOLLASHERIYIL HOUSE, VELLUR P.O., PAMBADI, KOTTAYAM 686 501.

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R1 BY GOVERNMENT PLEADER SRI. GOPINATHAN S.

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R2 BY SRI.JITHESH MENON, SC, SBI

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R3 BY ADVS. SRI.ABRAHAM MATHEW (VETTOOR)

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SRI.ANIL ABEY JOSE

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 12-04-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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sdr/8.05.18

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WP(C).No. 826 of 2018 (C)

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APPENDIX

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PETITIONER(S)' EXHIBITS

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------------------------EXHIBIT P1 TRUE COPY OF NOTICE DATED 12/6/2017 ISSUED BY THE ADVOCATE COMMISSIONER TO THE WRIT PETITIONER EXHIBIT P2 TRUE COPY OF COMPLAINT DATED 7/6/2017 SUBMITTED BY THE WRIT PETITIONER BEFORE THE REVENUE DIVISIONAL OFFICER EXHIBIT P3 TRUE COPY OF REPLY TO THE APPLICATION DATED 13/10/2017 EXHIBIT P4 TRUE COPY OF APPEAL DATED 24/6/2017 FILED BEFORE THE DISTRICT COLLECTOR, ERNAKULAM (THE APPELLATE TRIBUNAL FOR MAINTENANCE AND WELFARE OF PARENTS AND SENIOR CITIZENS ACT, 2007) EXHIBIT P5 TRUE COPY OF INTERIM APPLICATION BEFORE DISTRICT COLLECTOR, ERNAKUALM (THE APPELLATE TRIBUNAL FOR MAINTENANCE AND WELFARE OF PARENTS AND SENIOR CITIZENS ACT, 2007) EXHIBIT P6 TRUE COPY OF OBJECTION FILED ON C.M.P NO.2934/2016 DATED 19/8/2017 EXHIBIT P7 TRUE COPY OF NOTICE DATED 3/1/2018 ISSUED BY THE ADVOCATE COMMISSIONER. RESPONDENT(S)' EXHIBITS ------------------------EXHIBIT R3(A) A TRUE COPY OF THE DEED OF PARTNERSHIP WITH SHAJI M.R. DATED 3/8/2009. EXHIBIT R3(B) A TRUE COPY OF STATEMENT OF ACCOUNTS REGARDING ACCOUNT. NO.30867860047 MAINTAINED BY ME AND SHAJI MR WITH THE 2ND RESPONDENT BANK FOR THE PERIOD 25/8/2009 TO 31/5/2015. EXHIBIT R3(C) A TRUE COPY OF THE RELEVANT PAGES OF THE STATEMENT OF ACCOUNT MAINTAINED BETWEEN THE 3RD RESPONDENT AND THE PETITIONERS SON AND SINGED BY BOTH. /TRUE COPY/ PA TO JUDGE sdr/8.05.18

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A. MUHAMED MUSTAQUE, J.

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......................................... W.P.(C).No.826 of 2018

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Dated this the 12^th day of April, 2018.

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JUDGMENT

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The petitioner is a senior citizen, who seeks a writ of mandamus against the District Collector in the capacity as a District Magistrate to prevent the Bank and its officials from proceeding against the property owned by the petitioner along with her son.

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Admittedly, the petitioner and her son stood as a guarantor to the 3^rd respondent for availing a loan from the 2^nd respondent bank. According to the petitioner, she is an illiterate lady and loan agreement was executed without knowledge or consent. The petitioner submits that since she is a senior citizen, the District Magistrate is bound to protect her life and property in terms of Rule 19 of the Kerala Maintenance and Welfare of Senior Citizen Rules, 2009 and the petitioner cannot be thrown out or evicted from the secured asset. The secured asset comprised of a residential building surrounded with one acre of land.

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This Court passed an interim order on 9.1.2018 permitting the petitioner to occupy the land without staying other proceedings under the The SARFAESI Act. Learned counsel for the petitioner referd to Section 3 of Senior Citizen Act and argued that the Senior Citizen Act will prevail upon anything inconsistent with the provisions under the Act. Therefore, it is argued that the

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W.P.(C).No.826 of 2018

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senior citizen is having a right to reside in the secured asset and that cannot be interfered with by invoking the proceedings under the SARFAESI Act. Therefore, it is submitted that the petitioner cannot be evicted from the residential building and the District Magistrate is bound to protect the petitioner and her property.

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The SARFEASI proceedings arise out of the contractual obligations. The Senior Citizen Act is not intended to obviate any voluntarily incurred obligations based on contract. The writ jurisdiction or jurisdiction of the District Magistrate cannot be used to avoid any contractual obligations voluntarily incurred by the parties. If the petitioner is having any challenge against the contract entered with the bank, the petitioner is free to do so in appropriate proceedings. Contractual obligations are voluntarily incurred and there is no provision under the Senior Citizen Act to avoid such contractual obligations.

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In regard to the argument that Section 3 would prevail, this Court is of the view that this argument is misconceived. There are no other provisions which are inconsistent with the Senior Citizen Act. The Senior Citizen Act provides certain measures to protect the well being and welfare of senior citizens. It does not prescribe that a senior citizen should stay at a particular place alone. It is the obligation on the relatives to provide maintenance. Therefore, even if the petitioner is evicted from the residence, the children or relatives of the petitioner are under legal obligation to

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W.P.(C).No.826 of 2018

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maintain her by providing residence elsewhere.

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The petitioner also relied on a Division Bench judgment of

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this Court in Muhammed Basheer K.P. v. Deputy General Manager, Kannur District Coop. Bank Ltd (2010 (2) KHC 385), wherein this Court dealt with a challenge initiated under the SARFAESI proceedings referring to an exemption granted to agricultural lands. In fact, that issue was considered in the light of challenge made to the SARFAESI Act. In this case, the petitioner is claiming protection under the Senior Citizen Act. As I have already adverted, there is nothing in the Senior Citizen Act to protect a senior citizen from avoiding a contractual obligation voluntarily incurred. The learned counsel also relied on a decision reported in Bijaya Kumar Agarwala v. State of Orissa (1996 KHC 873). This judgment has no bearing in the writ petition. However, considering the age of the petitioner, she is permitted to reside in the house till the auction is finalised. It is made clear that after the auction is finalised, the bank is free to evict the petitioner from the residential house. The bank is also free to proceed against the property in accordance with law.

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In that view of the matter, the writ petition is dismissed.

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Sd/-

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A. MUHAMED MUSTAQUE, JUDGE.

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Narayaniamma v. District Collector ( Appellate Tribunal Kerala Maintenance and Welfare of Parents and Senior Citiz

Case brief

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Narayaniamma v. District Collector ( Appellate Tribunal Kerala Maintenance and Welfare of Parents and Senior Citiz

Case brief

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