Allowed

Irinjalakuda Town Co. Operative Bank Ltd., v. the District Police Chief

Kerala HC28 Jun 2024WP(C)/12324/2024

Case brief

AI extract

What is this about?

A co-operative bank that purchased mortgaged property in auction and took physical possession through the CJM under SARFAESI sought police protection after the former borrowers broke in and occupied it. Relying on Dewan Housing Finance, the Court held such entry is trespass and allowed the writ.

What did the court decide?

Respondents 1 and 2 directed to provide police protection to remove respondents 3 and 4 and persons claiming under them from the immovable property.

Irinjalakuda Town Co. Operative Bank Ltd., Vs the… — Banking and Recovery | Kerala HC (2024)

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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 N.NAGARESH

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FRIDAY, THE 28^TH DAY OF JUNE 2024 / 7TH ASHADHA, 1946 WP(C) NO. 12324 OF 2024

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PETITIONER:

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IRINJALAKUDA TOWN CO OPERATIVE BANK LTD., NO.55,HEAD OFFICE, TANA SOUTH, IRINJALAKUDA,680121. REPRESENTED BY ITS AUTHORISED OFFICER MR. T.K.DILEEP KUMAR, PIN – 680121

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BY ADVS. P.PAULOCHAN ANTONY SREEJITH K.

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RESPONDENTS:

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1 THE DISTRICT POLICE CHIEF, DISTRICT POLICE OFFICE, RAMAVARMAPURAM RD, PALLIMOOLA, MANNUMKAD, RAMAVARMAPURAM, THRISSUR, KERALA, PIN - 680631

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2 THE STATION HOUSE OFFICER, VELIKULANGARA POLICE STATION,VELLIKULANGARA PS, THRISSUR RURAL, KERALA, PIN - 680699

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3 MR.SANTO MATHEW , AGED 49 YEARS S/O. MATHEW, NELLIKUNNEL HOUSE, CHETTIKULAM P.O. CHALAKUDY, PIN - 680307

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4 MR. JOBY MATHEW , AGED 50 YEARS S/O. MATHEW, NELLIKUNNEL HOUSE, CHETTIKULAM P.O. CHALAKUDY, PIN – 680307

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BY SRI.BINOY DAVIS, GOVERNMENT PLEADER

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 28.06.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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W.P.(C) No.12324/2024

: 2 :

N. NAGARESH, J.

W.P.(C) No.12324 of 2024

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Dated this the 28^th day of June, 2024

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J U D G M E N T

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~ ~ ~ ~ ~ ~ ~ ~ ~

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The petitioner, a Co-operative Bank, seeks to

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direct respondents 1 and 2 to provide necessary police protection in removing respondents 3 and 4 and his people from continuing criminal trespass in the immovable property having an extent of 9.71 Ares, 20.84 Ares, 11.53 Ares, 8.09 Ares in Survey No.780/2 in Kuttichira Village, Chalakkudy Taluk, Thrissur District.

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The petitioner states that they advanced a loan of ₹1,24,00,000/- accepting mortgage of the afore extent of land. Respondents 3 and 4 committed default in repayment of loan and the loan account was declared as NPA. The petitioner invoked the provisions of the Securitisation and

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W.P.(C) No.12324/2024

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: 3 :

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Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002. Symbolic possession of the property was taken over with notice. The property was put to sale and the petitioner-Bank themselves purchased the property in the auction held on 04.04.2022.

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The petitioner thereafter submitted an application to the Chief Judicial Magistrate, Thrissur invoking Section 14 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002. M.C. No.880/2022 was allowed and the Advocate Commissioner appointed by the Chief Judicial Magistrate took physical possession of the property on 04.10.2023.

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Subsequently, the petitioner found that respondents 3 and 4 along with family including a bedridden mother have encroached into the property by breaking open the residential building and are staying in the said property. The petitioner requested respondents 3 and 4 to vacate the petition schedule property which request was not acceded to by respondents 3 and 4. The petitioner thereafter filed

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W.P.(C) No.12324/2024

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: 4 :

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Exts.P4 and P5 police complaints. Exts.P4 and P5 were also of no avail. The petitioner therefore prays to direct the 1^st respondent to provide necessary police protection and remove respondents 3 and 4 from the building in question.

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I have heard the learned counsel for the petitioner

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and the learned Government Pleader representing respondents 1 and 2.

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Ext.P2 Commission report dated 26.10.2023 prepared by the Advocate Commissioner appointed by the Chief Judicial Magistrate would indicate that the Advocate Commissioner had taken possession of the property on 04.10.2023 on behalf of the petitioner. The Chief Judicial Magistrate, Thrissur has also recorded taking of possession, as per order dated 26.10.2023 in M.C. No.880/2022. In such circumstances, entry of any parties including respondents 3 and 4 in the said premises can only be treated as trespass.

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In Dewan Housing Finance Corporation v. Superintendent of Police, Malappuram and others [2018 (3) KLT 402] , this Court has held that the exercise of right by

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W.P.(C) No.12324/2024

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: 5 :

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the Bank to take possession of the secured asset is a statutory right under the SARFAESI Act. When such statutory rights are exercised by a secured creditor, it is not open for any person to trespass into such property which has already been taken possession of. If such attitude is permitted, the statutory right of the secured creditor will become an eyewash and it may not be possible for the Bank to realise the secured debt.

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The writ petition is therefore allowed.

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Respondents 1 and 2 are directed to provide necessary police protection to remove respondents 3 and 4 and anybody claiming under them from continuing criminal trespass in the immovable property in question.

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Sd/-

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N. NAGARESH, JUDGE

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aks/18.07.2024

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W.P.(C) No.12324/2024

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: 6 :

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APPENDIX OF WP(C) 12324/2024

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PETITIONER'S EXHIBITS

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Exhibit P1	VIRTUE OF 12.06.2020 OF THE BANK	THE OF T	DECI HE BO	SION NO ARD OF	.12 DATED DIRECTORS
Exhibit P2	COMMISSION FILED BEFOR	REPOR E THE	T DAT CJM	ED 26.1 ,THRISSU	0.2023 WAS R
Exhibit P3	TRUE COPY THRISSUR MC/880/2022	OF DATE	THE D	ORDER 26.10.2	OF CJM, 023 IN
Exhibit P4	A TRUE COP DATED 31-10	Y OF -2023	THE	POLICE	COMPLAINT
Exhibit P5	A TRUE COP RECEIPT DAT	Y OF ED 31	THE -10-2	POLICE 023	COMPLAINT

Irinjalakuda Town Co. Operative Bank Ltd., v. the District Police Chief

Case brief

What is this about?

What did the court decide?

Irinjalakuda Town Co. Operative Bank Ltd., v. the District Police Chief

Case brief

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What did the court decide?

What the court decided

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