IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 35275 of 2009(D)
1. VIJAYA BANK, ALAPPUZHA BRANCH,
... Petitioner
Vs
1. JOMON JOHN, RESIDING AT JEES
... Respondent
2. THE SUPDT. OF POLICE, ALAPPUZHA.
3. THE CIRCLE INSPECTOR OF POLICE,
4. THE SUB INSPECTOR OF POLICE,
For Petitioner :SRI.K.ANAND (A.201)
For Respondent :SRI.C.S.ULLAS
The Hon'ble MR. Justice THOTTATHIL B.RADHAKRISHNAN
The Hon'ble MR. Justice S.S.SATHEESACHANDRAN
Dated :07/06/2010
O R D E R
THOTTATHIL B.RADHAKRISHNAN
&
S.S.SATHEESACHANDRAN, JJ.
-------------------------------------------
W.P(C).No.35275 OF 2009
-------------------------------------------
Dated this the 7th day of June, 2010
JUDGMENT
Thottathil B.Radhakrishnan, J.
1.The first respondent filed W.P(C).20150/08 seeking reliefs in
relation to proceedings under the SARFAESI Act. That writ
petition was ordered on 24.9.2008. He carried an appeal
against that. As per Ext.P1 judgment dated 24.10.2008, the
Division Bench ordered that appeal, W.A.2101/08.
2.When the appeal was being considered by the Division Bench,
the situation was that the residential building of the first
respondent herein was in the possession of the bank, it having
taken possession under SARFAESI Act proceedings. Before
the Division Bench, an affidavit of undertaking was filed by the
appellant undertaking to deposit an amount of Rs.7,00,000/-
WPC.35275/09.
2
within one month from then and balance within a further
period of three months. This was to provide him an
opportunity to occupy the residential building. The appellant
undertook that if he commits default in remitting any payment,
he shall ultimately hand over possession of the property to the
bank. In spite of serious opposition from the bank, the Bench
acted on that undertaking of the appellant and passed the
following order:
“(i) The appellant shall deposit a sum of
Rs.7,00,000/- (Rupees seven lakhs only) as
undertaken by him in the affidavit filed before this
Court within a month’s time from today.
(ii) If such deposit is made within the time
granted by this Court, the first respondent Bank is
directed to handover possession of the residential
house situated in Sy.No.782/2-2 of Alappuzha West
Village to the appellant.
(iii) The appellant shall pay the balance of
amount due to the first respondent Bank within the
WPC.35275/09.
3
outer limits of four months from today. If such
payment is not made within the time granted by
this Court, the appellant shall voluntarily hand over
vacant possession of the residential house situated
in Sy.No.782/2-2 of Alappuzha West village to the
first respondent Bank
(iv) If for any reason, the appellant fails to
hand over vacant possession of the residential
house, the first respondent Bank is at liberty to
take possession of the property with the assistance
of the police authorities.
(v) The first respondent Bank shall not effect
sale of the property for a further period of four
months from today.”
3.Direction No.(iv) of the aforesaid order was issued on the basis
of the undertaking of the first respondent herein that he shall
voluntarily hand over possession of the property to the
petitioner herein, in case of failure to pay the amount. That
being part of the judicial order issued by the Division Bench,
WPC.35275/09.
4
acting on the undertaking, the writ petitioner bank is well
founded in requesting for police help since the Bench had
directed that if for any reason there is failure to hand over
vacant possession, the bank will be at liberty to take
possession with assistance of police department.
4.Learned counsel for the first respondent argued that police
force can be brought in only if the Bank initiates fresh
proceedings under section 14 of the SARFAESI Act. We repel
this argument for the reason that the Bank had earlier
obtained possession and the first respondent herein was
permitted to occupy it only in terms of the direction of this
Court. That direction was issued by this Court coupled with
the liability of the debtor to voluntarily surrender possession
on failure to pay the amount. This Court had also directed that
the bank would be entitled to take possession with police force
in case of default. That judgment and order have become final
WPC.35275/09.
5
inter partis. We, therefore, overrule the contention of the first
respondent in that regard.
For the aforesaid reasons, this writ petition is allowed
directing respondents 2 to 4 to forthwith give effect to the
request of the petitioner in Ext.P2.
Sd/-
THOTTATHIL B.RADHAKRISHNAN,
Judge.
Sd/-
S.S.SATHEESACHANDRAN,
Judge.
kkb.8/06.