Dismissed

Dr.Shivanandan v. Bank of India

Kerala HC7 Jun 2019WA/1357/2019

Case brief

AI extract

What is this about?

In a writ appeal challenging a judgment upholding recovery proceedings under the SARFAESI Act, the court dismissed the appeal on merit despite the appellant's offer to withdraw, holding the occupier had no legal right to retain possession of the hypothecated asset sold to a third party.

What did the court decide?

Writ appeal dismissed; declaration that the bank can finalize recovery proceedings.

Dr.Shivanandan Vs Bank of India — Landlord and Tenant | Kerala HC (2019)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE THE CHIEF JUSTICE MR.HRISHIKESH ROY

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THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR

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FRIDAY, THE 07TH DAY OF JUNE 2019 / 17TH JYAISHTA, 1941

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W.A.No.1357 of 2019

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AGAINST THE JUDGMENT IN WP(C) 10652/2019 of HIGH COURT DATED 5.4.2019

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APPELLANT/PETITIONER:

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DR.SHIVANANDAN, AGED 60 YEARS S/O.C.ITTIRAPPAN, LAKSHMI BHAVAN, TRIKKULAM, CHEMMAD, POST TIRURANGADI, MALAPPURAM DISTRICT.

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BY ADV. SRI.C.M.MOHAMMED IQUABAL

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RESPONDENTS/RESPONDENTS:

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1 BANK OF INDIA, MID CORPORATE BANKING BRANCH, 1ST FLOOR, BANK OF INDIA BUILDINGS, K.G.ROAD, BANGALORE, PIN-560 009, REPRESENTED BY ITS GENERAL MANAGER.

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2 PUNJAB NATIONAL BANK, PNB HOUSE, 2ND FLOOR, 40/1461, MARKET ROAD, ERNAKULAM, KOCHI, PIN-682 011.

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3 SANDIP KUMAR CHOUDARY, S/O.SUBODH CHANDRA CHOUDARY, CHIEF MANAGER/AUTHORIZED OFFICER, THE PUNJAB NATIONAL BANK, MEDICAL COLLEGE, THIRUVANANTHAPURAM, PIN-695 001.

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4 MANOJ PAUL, AGED 48 YEARS, S/O.MAMMEN THOMAS, PARAKKAL, POTHODE JUNCTION, ANGADI, CHANGANACHERRY, ALAPPUZHA DISTRICT, PIN-686 101.

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5 M/S.LORWIN INDUSTRIES LTD., REGISTERED OFFICE, 174/1, 1ST FLOOR, 2ND MAIN ROAD, SHESHADRIPURAM, BANGALORE, PIN-560 020, REPRESENTED BY ITS MANAGING DIRECTOR K.S.SURESH KUMAR.

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SRI. J. HARIKUMAR, SC SRI.B.SATHISH CHANDRAN

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THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 07.06.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

W.A.No.1357 of 2019

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JUDGMENT

Hrishikesh Roy, C.J.

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This case was adjourned on 4.6.2019 with the following order:

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“ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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The learned counsel Sri. Mohammed Iqubal appearing for the appellant/writ petitioner submits that his client is still in occupation of the house standing on the in Sy. No.335/9 and 10 of the Tirurangadi Village. The said property was hypothecated against a loan. Now, the Punjab National Bank, is proceeding against the secured asset, under Section 13 and 14 of the SARFAESI Act. The resultant challenge to the Ext.P15 (19.2.2019) notice was rejected, under the impugned judgment dated 5.4.2019.

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Since there is no dispute that re-payment of the loan could not be made and the residential property was sold earlier (Ext.P1)by the owner to the 4^th respondent, and the tile deeds are deposited with the Bank, there may not be much of a legal option with appellant to retain the hypothecated asset. Realising this, the counsel for the appellant submits that the occupier/appellant will not pursue this Writ Appeal, if reasonable time is granted for arranging alternate accommodation.

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In view of above, a written undertaking should be filed before this Court by 6.6.2019 to vacate the premises within reasonable time. The Appeal be re-listed on 7.6.2019.

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. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ”

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Today on instruction, the learned counsel Sri.Mohammed Iqubal, submits that

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the Appellant does not wish to furnish the undertaking to vacate the premises and he may be permitted to withdraw the Appeal. In this case, the Punjab National Bank has initiated the process for recovery of the secured asset, for non payment of the loan dues.

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W.A.No.1357 of 2019

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: 3 :

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As can be seen, the occupied property was sold by the Appellant to Manoj Paul (4^th respondent) through the Ext.P3 deed dated 23.3.2011. The buyer in turn, had hypothecated the property with the Bank, to secure a loan. When loan repayments were not made, the Bank proceeded under the SARFAESI Act. The Appellant who retained possession, then moved court to challenge the Bank's action. But on account of the transaction entered into by the fourth respondent, with the Bank, no merit was found in the contention raised by the occupier that he should not be dispossessed

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The circumstances in the case clearly suggest that the occupier is trying to resist the Bank in their recovery proceeding, notwithstanding the execution of the Ext.P3 deed. The claim of the occupant/Appellant that he is a tenant in the premises since 2011 was specifically rejected by this court on 28.3.2019 (Ext.P12), in the O.P. (Crl.)141/19. While declining the relief to the occupier under the impugned judgment dated 5.4.2019 in the Writ Petition 10652/19, the learned Judge, referred to the earlier O.P.(Crl)141/19 and held that the occupier has no legal right, over the hypothecated asset. It was further found that the petitioner's professed difficulty in approaching the Civil Court for establishing his title over the property, is contrary to the submission made by the same litigant in the earlier proceedings i.e., the O.P.(Crl)141/19 (Ext.P12).

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On consideration of all relevant factors, the writ court declared that the occupier has no locus standi to challenge the recovery proceedings initiated by the Bank. As can be seen, the Appellant agreed to file an undertaking on the last date (4.6.2019) to vacate the premises. That was when this Bench was about to dictate the order dismissing the Appeal. Today, the same litigant reverses his earlier stand and seeks

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W.A.No.1357 of 2019

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: 4 :

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permission to withdraw the Appeal. However, in the backdrop of the proceedings before us on the last date, we feel that the Appeal should be dismissed on merit. It is ordered so accordingly with the declaration that the Bank can finalise the recovery proceeding.

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sd/- HRISHIKESH ROY CHIEF JUSTICE

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sd/- A.K.JAYASANKARAN NAMBIAR JUDGE

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jes

Dr.Shivanandan v. Bank of India

Case brief

What is this about?

What did the court decide?

Dr.Shivanandan v. Bank of India

Case brief

What is this about?

What did the court decide?

What the court decided

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