High Court Kerala High Court

Sahadevan vs Authorised Officer on 16 June, 2010

Kerala High Court
Sahadevan vs Authorised Officer on 16 June, 2010
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

WP(C).No. 20710 of 2009(G)


1. SAHADEVAN,
                      ...  Petitioner

                        Vs



1. AUTHORISED OFFICER,
                       ...       Respondent

2. P.J.STALIN,

3. S.I.OF POLICE, ELOOR POLICE STATION.

                For Petitioner  :SRI.GIKKU JACOB

                For Respondent  :SRI.K.K.CHANDRAN PILLAI, SC, HDFC

The Hon'ble MR. Justice P.R.RAMACHANDRA MENON

 Dated :16/06/2010

 O R D E R
                   P.R.RAMACHANDRA MENON, J
                  ---------------------------
                    W.P(C) No.20710 of 2009-G
                 ----------------------------
                Dated this the 16th day of June, 2010.

                           J U D G M E N T

The petitioner, who is a stranger to the loan transaction with

the respondent Bank, has filed this Writ Petition seeking for a

direction to allow the petitioner to remit the arrears of the loan on

behalf of the second respondent/borrower, if the same is not

remitted by him within a reasonable time and to effect the future

instalments on the respective due dates and for some incidental

reliefs.

2. The sequence of events as described by the learned

counsel for the petitioner is that the property, which originally

belonged to the petitioner, was sold to the second respondent for

valuable sale consideration. It is stated that the second respondent

had borrowed some amount from the respondent Bank for

purchasing this property from the petitioner, creating security

interest over the property in question. But the entire sale price

payable to the petitioner is stated as not satisfied, under which

circumstances, there is some arrangements between the petitioner

W.P(C) No.20710 of 2009-G 2

and the second respondent/borrower; based on which, the

petitioner is continuing to occupy the premises.

3. While so, since the second respondent did not satisfy the

liability to the first respondent Bank, the account was declared as

‘NPA’ and the Bank proceeded with steps under the SARFAESI Act to

take physical possession of the premises and to have the same sold

in public auction. It was in the said circumstances, the petitioner

approached this Court by filing the above Writ Petition seeking for a

direction to permit the petitioner to clear the liability on behalf of

the second respondent and to have the loan account regularised.

4. The learned counsel for the Bank submits with reference

to the contends of the counter affidavit that, the petitioner has filed

the Writ Petition without revealing the true state of affairs and in a

clandestine manner, colluding with the second respondent. After

considering the matter on admission, this Court ordered notice on

23.7.2009 and since there was no interim order of stay, the Bank

proceeded with further steps by filing a petition under Section 14 of

the SARFAESI Act before the Chief Judicial Magistrate’s Court,

Ernakulam, for rendering necessary assistance to take physical

possession of the building. The property along with the building

W.P(C) No.20710 of 2009-G 3

was taken possession of and handed over to the respondent Bank

and the Advocate Commissioner filed a report before the Chief

Judicial Magistrate’s Court, complying with the direction, as borne

by Ext.R1(d).

5. The case of the respondent Bank is that, subsequent to

taking over the possession as above and inspite of placing a security

guard at the premises, the petitioner herein took the law into his

hands; threatened and drove away the security guard; forcefully

took over the possession of the building and started living there,

which made the Bank to file complaints before the Police, as borne

by Exts.R1(e) and (f). The Bank also filed a petition before the Chief

Judicial Magistrate’s Court pointing out the sequence of events,

which is stated as already heard and reserved for orders.

6. The learned counsel for the Bank submits that the

petitioner does not have any `locus standi’ to file this Writ Petition,

more so, in view of the fact that the property was sold by the

petitioner himself to the second respondent and the sale

consideration, to an extent of Rs.21 lakhs was provided by the Bank

by way of crossed cheque, in the name of the petitioner by way of

the loan facility extended to the second respondent/borrower, on

W.P(C) No.20710 of 2009-G 4

the strength of the security interest created over the property by the

purchaser ie. the second respondent.

7. The learned counsel for the petitioner submits that the

proceedings finalised by the Bank were behind the petitioner and

that the rights and interests of the petitioner, over the rights of the

second respondent, are not liable to be adversely affected in any

manner. This Court finds it difficult to accept the version of the

petitioner. The sale effected by the petitioner in favour of the

second respondent is complete. The second respondent/borrower

created security interest over the property in question in connection

with the loan availed from the Bank. The amount of sale

consideration disbursed by the Bank was directly to the petitioner by

way of crossed cheque, as agreed among the parties. The cause of

action sought to be agitated on the basis of the alleged rights

between the petitioner and the second respondent, can’t thwart the

rights and liberties of the Bank under the SARFAESI Act. In other

words, the cause of action for the petitioner, if any, in respect of the

alleged non-payment of the sale consideration by the second

respondent, is entirely different from the cause of action being

pursued by the Bank in connection with the loan extended to the

W.P(C) No.20710 of 2009-G 5

second respondent. This Court finds that the Bank is perfectly

justified in proceeding against the second respondent/borrower,

who has not chosen to challenge the same in any manner. This

being the position, the Bank is at liberty to proceed with further

steps for getting the physical possession of the property concerned

and to have the same sold in the public auction, in accordance with

law. The rights and liberties of the petitioner if any, as against the

second respondent, are left open. Relief’s sought for in the Writ

Petition are not correct or sustainable. Interference is declined and

the Writ Petition is dismissed accordingly.

Sd/-

P.R.RAMACHANDRA MENON
JUDGE

//True Copy//

P.A to Judge
ab