Dismissed

K.v.Prakashan v. a.a.Kumaran

Kerala HC8 Jun 2022WA/611/2022

Case brief

AI extract

What is this about?

This writ appeal challenges a Single Judge order directing police to remove respondents who trespassed on property acquired via S.A.F.E.I. Act auction. The Court rejected the appeal, holding that borrowers who admitted eviction cannot legally trespass and must seek civil remedies for grievances regarding movable properties left behind.

What did the court decide?

Writ appeal dismissed; direction to police to remove trespassers from the property upheld.

K.v.Prakashan Vs a.a.Kumaran — Banking and Recovery | Kerala HC (2022)

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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 P.B.SURESH KUMAR

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THE HONOURABLE MRS. JUSTICE C.S. SUDHA

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WEDNESDAY, THE 8^TH DAY OF JUNE 2022 / 18TH JYAISHTA, 1944

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WA NO. 611 OF 2022

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AGAINST THE JUDGMENT IN WP(C) 5875/2022 OF HIGH COURT OF

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KERALA

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APPELLANTS/RESPONDENTS 4 & 5 IN WPC:

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1 K.V.PRAKASHAN, AGED 55 YEARS, S/O VASU, KADAMPUZHA HOUSE, VALLACHIRA P.O., TRISSUR DISTRICT, PIN-680 512.

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2 BINDU PRAKASHAN, S/O VASU, KADAMPUZHA HOUSE, VALLACHIRA P.O., TRISSUR DISTRICT, PIN-680 512.

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BY ADVS. P.CHANDRASEKHAR C.S.ULLAS MANJARI G.B.

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RESPONDENTS/PETITIONER AND RESPONDENTS 1 TO 3 IN WPC:

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1 A.A.KUMARAN, AGED 65 YEARS, S/O AYYAPPAN, ATTUPURATH HOUSE, PERUMPILLISSERY, CHEVOOR, TRISSUR DISTRICT-680 561.

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2 SUPERINTENDENT OF POLICE, OFFICE OF THE SUPERINTENDANT OF POLICE, TRISSUR-680 022.

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3 THE SUB INSPECTOR OF POLICE, CHERPU POLICE STATION, TRISSUR RURAL, TRIPRAYAR ROAD, TRISSUR-680 561.

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W.A. (Civil) No.611 of 2022 -: 2 :-

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4 THE STATE BANK OF INDIA, URAKAM BRANCH, TRISSUR, PIN-680 512, REPRESENTED BY ITS AUTHORIZED OFFICER.

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OTHER PRESENT:

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BY GOVERNMENT PLEADER SMT.REKHA.C.NAIR BY S.EASWARAN, STANDING COUNSEL

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THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 08.06.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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W.A. (Civil) No.611 of 2022 -: 3 :-

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P.B.SURESH KUMAR & C.S.SUDHA, JJ.

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Writ Appeal (Civil) No.611 of 2022

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Dated this the 8^th day of June, 2022

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JUDGMENT

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P.B.Suresh Kumar, J.

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This writ appeal is directed against the judgment dated 18.05.2022 in W.P.(C) No.5875 of 2022. The appellants are respondents 4 and 5 in the writ petition. Parties and documents are referred to in this judgment for convenience, as they appear in the writ petition.

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Petitioner is the auction purchaser of an item of immovable property over which security interest was created for a loan availed by respondents 4 and 5 from the third respondent Bank. Consequent to default in repayment of the loan, proceedings have been initiated by the third respondent for enforcement of security interest in terms of the provisions of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (the Act) and in the said proceedings, on 13.03.2018, possession of the

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W.A. (Civil) No.611 of 2022 -: 4 :-

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property was taken over and handed over to the authorised officer of the Bank by the Advocate Commissioner appointed by the concerned Chief Judicial Magistrate under Section 14 of the Act. Thereafter, in compliance with the provisions of the Act, sale of the property was held and the possession was handed over to the petitioner who became the successful bidder in the auction sale, after issuing a sale certificate to him. On the strength of the sale certificate, the petitioner has effected transfer of registry of the property in his name and has also remitted the basic tax.

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The case set out by the petitioner in the writ petition is that on 22.1.2022, respondents 4 and 5, who were the borrowers, forcibly trespassed into the property, broke open the doors of the building therein and took forcible possession of the property. The petitioner, in the circumstances, sought protection from police for his life and property on the ground that after respondents 4 and 5 were physically dispossessed from the property in accordance with the provisions of the Act, they cannot take forcible possession of the property using their might. Since the petitioner was not afforded the protection sought by him, he instituted the writ

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W.A. (Civil) No.611 of 2022 -: 5 :-

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petition for a direction to the police to take necessary steps to remove respondents 4 and 5 from the property and grant him protection for his life and property.

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A counter affidavit has been filed by the Bank contending, among others, that the sale of the property effected in favour of the petitioner has become final, although respondents 4 and 5 have challenged the possession notice issued earlier in S.A. No.175 of 2018 before the Debts Recovery Tribunal. It was also contended by the Bank in the counter affidavit that since there existed a residential building in the property, the Advocate Commissioner was permitted by the Chief Judicial Magistrate in exercise of his power under Section 14 of the Act to break open the building and it is after breaking open the building in the property that the possession has been handed over by the Advocate Commissioner to the authorised officer of the Bank.

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Respondents 4 and 5 filed a counter affidavit in the matter contending, among others, that physical possession of the property was not available with the Bank when they effected sale of the property as they had not ceased

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to occupy the building and that the possession taken by the

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W.A. (Civil) No.611 of 2022 -: 6 :-

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Advocate Commissioner was only symbolic.

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It is seen that the main contention put forward by respondents 4 and 5 in the writ petition was that the remedy of the petitioner, if any, in a case of this nature is to move the civil court for appropriate relief and that the petitioner is not entitled to invoke the public law remedy under Article 226 of the Constitution for redressal of his grievance. The learned Single Judge found that respondents 4 and 5 were physically dispossessed from the property on 13.03.2018 by the Advocate Commissioner appointed under Section 14 of the Act. The learned Single Judge has also found that in a case of this nature, the petitioner is justified in invoking the public law remedy under Article 226. Accordingly, the writ petition was allowed directing the police to take immediate steps to remove respondents 4 and 5 from the property, if necessary by use of force and hand over the same to the petitioner, apart from granting police protection to the life and property of the petitioner. Respondents 4 and 5 are aggrieved by the said decision of the learned Single Judge.

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Heard the learned counsel for the appellants,

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respondents 4 and 5.

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W.A. (Civil) No.611 of 2022 -: 7 :-

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The learned counsel for the appellants contended that the question as to whether respondents 4 and 5 have trespassed into the subject property is a question of fact to be decided in an appropriate forum and not in a proceedings under Article 226. It was also contended by the learned counsel that the police cannot be directed to remove anyone from any property, that too, using force. It was asserted by the learned counsel that the building in the property was not the subject matter of the application under Section 14 of the Act and respondents 4 and 5 were neither evicted from the building by the Advocate Commissioner nor was the building handed over to the authorised officer of the Bank. It was also the submission of the learned counsel that the movables of respondents 4 and 5 are still kept in the building and they are very much in occupation of the building. The learned counsel has relied on several judgments of the Apex Court as also this Court in support of the general propositions argued by him.

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We have considered the arguments advanced by the learned counsel for the appellants.

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The essence of the arguments advanced by

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W.A. (Civil) No.611 of 2022 -: 8 :-

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the learned counsel for the appellants as regards the merits of the matter is that the building in the property was not the subject matter of the application under Section 14 of the Act and that respondents 4 and 5 have not been evicted from the building by the Advocate Commissioner appointed under Section 14 of the Act. As noted, physical possession of the property in the case was taken over by the Advocate Commissioner on 13.03.2018. The fact that respondents 4 and 5 have been physically dispossessed from the property is not disputed by them. Their case is only that the building in the property was not the subject matter of the proceedings under Section 14 of the Act and they were not evicted from the building and therefore, there was no occasion for them to trespass into the building. It is seen from the materials on record that in the affidavit filed by the fourth respondent in S.A.No.175 of 2018 on 26.03.2018 which is part of the records in the writ petition as Ext.R3(h), it has been categorically admitted by respondents 4 and 5 that they were not only evicted from the property but also from the building therein with police aid. The relevant portion of the said affidavit reads thus:

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W.A. (Civil) No.611 of 2022 -: 9 :-

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“The 1st defendant had approached the Chief Judicial Magistrate, Thrissur and filed a petition under section 14 of the Securitisation & Reconstruction of Financial Assets & Enforcement of Security Interest Act, 2002, to direct the Commissioner to take possession of the scheduled properties. Thereupon, after serving the Annexure-VII notice for dispossession, the respondents along with the Advocate Commissioner and Police on 13-3-2018 at 8.30 am took possession of the scheduled property and Building and petitioners were ousted even without preparing an inventory and all household articles, utensils, furniture and Gold ornaments, Household electronic items, Fridge, A/C's, T.V. and other electronic items, Tools and machinery, Gas cylinder and kitchen appliances, dresses, Livestock, domestic animals were not allowed to taken (sic.) any above mentioned items.”

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True, it is stated in the extracted affidavit that the Advocate

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Commissioner did not prepare an inventory of the various movables in the building when respondents 4 and 5 were ousted from the building and they were not allowed to remove the same. Be that as it may, in the light of the said affidavit, the contention now advanced by respondents 4 and 5 that they were not evicted from the building and they continued to occupy the building is one taken with mischievous intentions and without any bonafides . In other words, the case of the petitioner that on 22.1.2022, respondents 4 and 5 have forcibly trespassed into the property, broke open the doors of the building and took forcible possession of the property is to be

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W.A. (Civil) No.611 of 2022 -: 10 :-

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accepted as correct.

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Rule of law is one of the basic features of our Constitution which pervade the whole constitutional fabric. In other words, the constitutional scheme is that it is for the law to rule and even the guardians of the law are to obey the law. It is said that wherever law ends, tyranny begins. It is having regard to the said principles, the courts have held that as a sentinel on the qui vive , in appropriate cases, this Court can certainly direct the police force of the State to use its force to restore possession of the property which the true owner has been wrongfully deprived of. As noted, the petitioner obtained possession of the property in terms of the provisions of the Act and if anyone dispossess the petitioner from such a property, we have no doubt in our mind that it is an exceptional case where this court has to direct the police force of the State to restore possession of the property which the true owner has been deprived of, by use of force, if required.

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The contention advanced by the learned counsel for respondents 4 and 5 that the question whether respondents 4 and 5 have trespassed into the subject property is a question of fact to be decided in an appropriate forum and

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W.A. (Civil) No.611 of 2022 -: 11 :-

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not in a proceedings under Article 226 is mischievous in as much as they themselves have admitted in Ext.R3(h) affidavit that they have been ousted not only from the property but also from the building therein. Even assuming that the building in the property was not the subject matter of the application under Section 14 of the Act, we do not think that if respondents 4 and 5 were evicted from the building, they can trespass into the property by taking law into their hands. Similarly, if as a matter of fact, the Advocate Commissioner has not permitted respondents 4 and 5 to remove their movables when they were dispossessed from the property, they should have approached the appropriate forum for the said grievance and the alleged conduct cannot be justified on that ground.

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In the said view of the matter, we do not find any merit in the writ appeal and the same is, accordingly, dismissed.

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Sd/- P.B.SURESH KUMAR, JUDGE.

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Sd/- C.S.SUDHA, JUDGE.

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K.v.Prakashan v. a.a.Kumaran

Case brief

What is this about?

What did the court decide?

K.v.Prakashan v. a.a.Kumaran

Case brief

What is this about?

What did the court decide?

What the court decided

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Issues for consideration

Statutes considered

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