{"id":126178,"date":"1970-01-01T00:00:00","date_gmt":"1969-12-31T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/s-shameem-vs-the-city-police-commissioner"},"modified":"2014-11-12T20:55:48","modified_gmt":"2014-11-12T15:25:48","slug":"s-shameem-vs-the-city-police-commissioner","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/s-shameem-vs-the-city-police-commissioner","title":{"rendered":"S.Shameem vs The City Police Commissioner"},"content":{"rendered":"
Kerala High Court<\/div>\n
S.Shameem vs The City Police Commissioner<\/div>\n
       \n\n  \n\n  \n\n \n \n  IN THE HIGH COURT OF KERALA AT ERNAKULAM\n\nWP(C) No. 26151 of 2005\n\n\n1. S.SHAMEEM, S\/O.SHAHUL HAMEED,\n                      ...  Petitioner\n\n                        Vs\n\n\n1. THE CITY POLICE COMMISSIONER,\n                       ...       Respondent\n2. THE CIRCLE INSPECTOR OF POLICE,\n3. R.SOORAJ, S\/O.RAMDAS, LAKSHMI SADAN,\n\n                For Petitioner  :SRI.V.JAYAKUMAR\n\n                For Respondent  :SRI.V.GIRI\nThe Hon'ble MR. Justice M.RAMACHANDRAN\nThe Hon'ble MR. Justice M.N.KRISHNAN\n\n Dated :       \/  \/\n O R D E R\n<\/pre>\n
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        \t\tThis  is an application for police protection.
\n        The  petitioner  had  invited  our  attention  to  Ext.P5
\n        representation   submitted   by   him  dated  31-08-2005.
\n        Although it was addressed to the Commissioner of  Police,
\n        Thiruvananthapuram,   he   submitted   that   the   third
\n        respondent was attempting to take law in his hands so  as
\n        to evict him from the tenanted premises unlawfully, where
\n        he  was  conducting  business, and it was imperative that
\n        the police is directed to render sufficient help so as to
\n        protect him.\n<\/p>\n
        \t2.\tAccording to the petitioner, Ext.P1 rent  deed
\n        dated  01-06-2001  in respect of a shop room governed the
\n        relationship between himself and  the  third  respondent,
\n        who was  the landlord.  He had been authorised to conduct
\n        a readymade dress shop and due licence had  been  granted
\n        by the Corporation for the business.  Later on arrears of
\n        rent  fell  due  and  R.C.P.No.6  of  2004 had come to be
\n        filed, which resulted in an order for eviction.   Against
\n        the  said order, R.C.A.No.9 of 2005 had been filed by him
\n        and    the    First    Additional     District     Judge,
\n        Thiruvananthapuram in I.A.No.384 of 2005 in R.C.A.No.9 of
\n        2005 had  stayed  the  order  of  eviction.    It was not
\n        attempted to be vacated and the submission  was  that  by
\n        use  of  force  notwithstanding the above order (Ext.P4),
\n        forcible eviction was being attempted.\n<\/p>\n
        \t3.\tPrima  facie  it  had  been  found  that   the
\n        petitioner was  entitled to an interim order.  This Court
\n        had  directed  respondents  1  and  2  to  give  adequate
\n        protection  to  ensure that his possession and occupation
\n        of the building is not interfered with at the instance of
\n        the third respondent or any strangers.\n<\/p>\n
        \t4.\tThe third respondent  had  entered  appearance
\n        and  had  filed a counter affidavit and further requested
\n        that  the  interim  orders  were  to   be   appropriately
\n        modified.   Senior  Counsel Sri.S.V.S.Iyer, appearing for
\n        the  third   respondent,   especially   highlighted   the
\n        circumstance  that  making  use  of  the  interim  orders
\n        passed, in a most dishonest  manner  the  petitioner  had
\n        secured  further  orders  from the Rent Control Appellate
\n        Authority in I.A.No.2193 of 2005, even by impleading  the
\n        Circle  Inspector  of  Police,  Thiruvananthapuram  as an
\n        additional respondent to the proceedings  and  had  upset
\n        the continued  possession  of  the  landlord.  He further
\n        submitted that the writ petition  was  not  maintainable.
\n        This  Court  has  been  taken  astray,  as  the  full and
\n        relevant facts have not been  brought  to  its  attention
\n        when  the  matter  came up for admission and the landlord
\n        has been inflicted with civil injury.   He  submits  that
\n        the  petitioner had a duty to present full facts and then
\n        only  could  have  made  a  request  for  exercising  the
\n        discretionary  jurisdiction, in proceedings under Article
\n        226 of the Constitution of India.  It is  submitted  that
\n        civil  suits and other proceedings are pending before the
\n        appropriate authorities and the short cut method employed
\n        by the petitioner was illegal.\n<\/p>\n
        \t5.\tWe feel that the fuller details supplied to us
\n        do  indicate   that   the   petitioner   is   guilty   of
\n        indiscretion.    He   had   presented  the  facts  as  if
\n        high-handed action had been resorted to by the  landlord.
\n        Of course, the landlord was bound by interlocutory orders
\n        passed  by  the  Rent  Control Appellate Authority, which
\n        prohibited him from exercising  his  right  of  eviction.
\n        But   the   tenant  appears  to  have  been  divested  of
\n        possession  as  a  consequence  of  certain  independent,
\n        collateral proceedings only, unconnected with proceedings
\n        under the Rent Control Act.\n<\/p>\n
        \t6.\tDocumentary  evidence had been supplied by the
\n        third respondent and the affidavit gives further details.
\n        It is submitted that Ext.P1 is a sham document and it did
\n        not govern the rental arrangements between  the  parties.
\n        Reliance  was placed on Ext.R3(a) dated 01-10-2001, which
\n        was an agreement on which parties had put on record their
\n        respective rights and liabilities and this was to  be  in
\n        operation for a period of six months from 01-10-2001.  He
\n        admits   that   the   arrangement   had  been  continuing
\n        thereafter,   but   there   was   heavy   default   which
\n        necessitated filing of a rent control petition and it had
\n        ended  in  a  decree  of  eviction,  although  an  appeal
\n        therefrom is pending.  It is  stated  that  although  the
\n        rental  arrangements  had  started from May 2001 onwards,
\n        there was no payment of Rs.5 lakhs as advance, and during
\n        the subsistence of the rental arrangement the  petitioner
\n        in  the  writ petition had requested the third respondent
\n        to stand as guarantor for  a  loan  from  Union  Bank  of
\n        India.   It  was for Rs.5 lakhs and the Bank required the
\n        landlord to create a mortgage  in  respect  of  the  shop
\n        room.   Security was consequently created by mortgage and
\n        deposit of title deed of the tenanted premises.  This was
\n        to oblige  the  tenant.    There  was  huge  default   in
\n        repayment  of  the loan amount and the Bank had initiated
\n        action  for  recovery  under   the   Securitisation   and
\n        Reconstruction  of  Financial  Assets  and Enforcement of
\n        Security Interest Act,  2002  (for  short  Securitisation
\n        Act).   Notices  had  been  issued by the Bank from July,
\n        2001 onwards and as  a  guarantor  the  third  respondent
\n        could not   have  evaded  from  responsibility.    It  so
\n        happened that the Bank had exercised  their  right  under
\n        the  Securitisation  Act and they had taken possession of
\n        the mortgaged  property  on  20-12-2004.    Ext.R3(d)  is
\n        produced in support thereof.\n<\/p>\n
        \t7.\tBy  Ext.R3(d),  the tenant was required to pay
\n        up the entire dues, and as a measure in their discretion,
\n        at his request, possession of the property was  given  to
\n        him  by  the  Bank, recording his undertaking to hold the
\n        property under trust on behalf of the Bank to enable  him
\n        to  remit  the dues to the Bank latest by 5th of January,
\n        2005.  Such payments had not been there.  As reserved  by
\n        Ext.R3(d),   possession   was   taken  back  by  them  on
\n        07-05-2005.  From 20-12-2004  there  was  no  tenancy  in
\n        operation because of the impact of Securitisation Act.\n<\/p>\n
        \t8.\tCounsel   for  the  third  respondent  further
\n        invited our attention to the notices issued by the  Union
\n        Bank  of  India proclaiming their possession as envisaged
\n        by the Securitisation Act  in  news  papers,  by  notices
\n        dated 14-05-2005.  It had been notified that the borrower
\n        as  well as the guarantor had failed to pay back the dues
\n        and  the  properties  had  been   taken   possession   on
\n        07-05-2005.    General   public  were  informed  that  no
\n        transactions in respect  of  the  properties  would  have
\n        bound the superior claims of the Bank.\n<\/p>\n
        \t9.\tThe  petitioner could not have been considered
\n        as  in  possession  or  ownership   of   the   properties
\n        thereafter.   The  shop room was a valuable asset and the
\n        predicament of the third respondent was that  because  of
\n        the  default  committed by the petitioner, property would
\n        have been irrevocably lost to him.  The third respondent,
\n        according to him, had cleared  the  outstanding  dues  by
\n        remitting  Rs.6,72,000\/-  towards  the  loan  amount,  as
\n        guarantor.  The affidavit as also Ext.R3(g) indicate that
\n        a further sum of Rs.6,03,000\/- had been paid by the third
\n        respondent towards another loan  account  simultaneously,
\n        as  the  Bank  was utilising the opportunity to clear the
\n        dues not only of the petitioner, but also  his  relative,
\n        in  whose favour also the third respondent was considered
\n        as guarantor.  He had no other go than to shell  out  the
\n        money.    He  submits  that  the  Bank  had  handed  over
\n        possession of the property to him, and such possession is
\n        evidenced by Certificate dated 12-08-2005, copy of  which
\n        is marked as Ext.R3(h).\n<\/p>\n
        \t10.\tAccording  to  the  third respondent, the shop
\n        was empty as early as from January, 2005 onwards.   There
\n        were  efforts  taken  by the petitioner to interfere with
\n        his possession by breaking open the locks and  attempting
\n        to  place  goods in the shop room so as to make it appear
\n        that he  retained  control  over  the  properties.     On
\n        complaints   being  made,  police  had  given  the  third
\n        respondent sufficient  help.     It   was   after   these
\n        adventures that the petitioner had dishonestly moved this
\n        Court and   obtained   orders.     It  had  been  further
\n        misutilised by misrepresenting the Rent Control Appellate
\n        Authority.\n<\/p>\n
        \t11.\tThe version of the third respondent, as above,
\n        of course is controverted by the petitioner.  He  submits
\n        that  it was highly improbable that a landlord might have
\n        come to stand as guarantor for a  tenant.    It  is  also
\n        stated  that  the  third  respondent  has  not helped the
\n        relatives of the petitioner for securing loans,  for  any
\n        purposes,  and  the  claims as above are bereft of truth.
\n        He relied on Ext.P1 as an  authentic  document  and  also
\n        referred  to  pendency  of  another  suit between them as
\n        O.S.No.1005 of 2003 and  points  out  that  the  disputed
\n        questions could be more profitably adjudicated there.  It
\n        is  submitted  that there was no suppression, as alleged,
\n        and in any case the third respondent was bound by  Ext.P4
\n        order  of  the  Appellate Authority and he could not have
\n        any superior claims for possession,  as  their  relations
\n        were  governed  by  the  Kerala Buildings (Lease and Rent
\n        Control) Act.  A short cut for eviction was impermissible
\n        and any eviction could have been brought  about  only  on
\n        the grounds  authorised  by  the statute.  These were the
\n        submissions in short.\n<\/p>\n
        \t12.\tHowever,  it is difficult for us to accept the
\n        explanations of the petitioner to show that there was  no
\n        suppression of  relevant  facts.    In  retrospect it can
\n        safely be assumed that if this Court  had  been  supplied
\n        with  details,  as  have  now  come forth, the petitioner
\n        hardly  would  have  obtained  an  interlocutory   order,
\n        practically restoring him to possession, which he had not
\n        at the  relevant  time.  Necessarily the steps have to be
\n        retraced.  Because of the impact  of  the  Securitisation
\n        Act,  the tenant had lost the tenancy right, and the Bank
\n        had  come  to  full  possession,  which  had  even   been
\n        recognised  by  the  tenant,  in  the  course of the said
\n        proceedings.\n<\/p>\n
        \t13.\tUnder Section 13(4) of the Securitisation Act,
\n        in case the borrower fails to  discharge  his  liability,
\n        the  secured  creditor  is authorised to take recourse to
\n        the measures stipulated by  the  section.    This  is  in
\n        recognition  of  the  provisions  of  the  Act  that  any
\n        security  interest  created  in  favour  of  the  secured
\n        creditor  may be enforced without the intervention of the
\n        Court or Tribunal.  Thus, a creditor is entitled to  take
\n        possession   of   the  secured  assets  of  the  borrower
\n        including  the  right  to  transfer  by  way  of   lease,
\n        assignment or  sale for realising the secured asset.  The
\n        right also includes taking over management of the secured
\n        assets by right to transfer by way of  lease,  assignment
\n        or sale.    The  appointment  of  a  person to manage the
\n        secured assets, the possession of which  has  been  taken
\n        over  by  the  secured  creditor  is  also  contemplated.
\n        Sub-section (6) also  lays  down  that  any  transfer  of
\n        secured  asset after taking possession thereof shall vest
\n        in the transferee all rights in, or in relation  to,  the
\n        secured  asset  transferred  as  if the transfer had been
\n        made by the owner of such secured asset.\n<\/p>\n
        \t14.\tThe   only  circumstance  that  the  guarantor
\n        (third respondent herein) was the owner  of  the  secured
\n        asset need  not  saddle  him with any disability.  In any
\n        case, the Act does not provide for any such  restriction.
\n        By the operation of the section, the transfer brings with
\n        it  all the proprietary rights that are usually available
\n        in respect of the holding.  Although it is  contended  by
\n        Sri.Jayakumar  that  so  far  as  a tenanted premises, to
\n        which provisions of the Kerala Buildings (Lease and  Rent
\n        Control)   Act  applies,  the  tenancy  could  have  been
\n        terminable only in the manner authorised by the said law,
\n        we do not think the above argument can have any relevance
\n        in view of section 35 of the  Securitisation  Act.    The
\n        provisions  of  the  Securitisation Act shall have effect
\n        notwithstanding anything inconsistent therewith contained
\n        in any other law for the time being in force.  In respect
\n        of transactions governed by the said Act, the  overriding
\n        provisions   effectively   nullify  the  rights  normally
\n        admissible even to a tenant, as available under the  Rent
\n        Control  Act,  as  it  can be only subservient to a later
\n        Central enactment.\n<\/p>\n
        \t15.\tThe   Rules   under   the  Securitisation  Act
\n        extensively deal with the  procedure  to  be  adopted  in
\n        respect of  sale  of  immovable  assets.  Although in the
\n        present case, after publication of notice,  there  was  a
\n        settlement of debts and further proceedings for sale were
\n        not  required  to be followed, it cannot be disputed that
\n        the Bank in law came to possession of  the  property  and
\n        such  rights,  including possession, had been handed over
\n        to the landlord on payment of  defaulted  amounts.    The
\n        contention of the petitioner is that he was in possession
\n        all through  out.  But it is not found as one submission,
\n        which could  be  countenanced.    Naturally,  he  is  not
\n        therefore  entitled to police protection for preservation
\n        of any  imaginary  rights.    Although  we  can   foresee
\n        possibility   of   misuse   of  such  provisions  in  the
\n        Securitisation Act, in the distant horizon, at  least  in
\n        this  case, we have nothing worthwhile to assume that the
\n        landlord was employing any circuitous methodology.\n<\/p>\n
        \t16.\tNormally, after vacating the  interim  orders,
\n        the writ  petition  was to be dismissed.  But, as pointed
\n        out by the senior counsel, further orders had come to  be
\n        passed  by  the  Rent Control Appellate Authority, on the
\n        strength of the interim orders passed by this  Court,  in
\n        I.A.No.2193 of 2005 on 06-09-2005.  It essentially has to
\n        be noticed.    We  feel  that  follow  up  directions are
\n        required to be made.  On receipt of a certified  copy  of
\n        this  judgment, the landlord will be entitled to move the
\n        said Authority praying for appropriate orders,  that  may
\n        be  necessary,  and  orders  are  to  be  passed  by  the
\n        Appellate Authority on the application  so  filed  within
\n        one   week   from   the   date  of  presentation  of  the
\n        application, duly taking notice of the observations  made
\n        by  us,  and especially that the writ petition itself was
\n        misconceived and irregular.\n<\/p>\n
        \t17.\tOn the facts of the case, we feel that we have
\n        to stretch our jurisdiction at least to some  extent,  so
\n        as  to  ensure that process of the Court are not misused.
\n        We do not think that the third respondent is to be  again
\n        subjected  to  the  disability  of  challenging orders in
\n        I.A.No.2193  of  2005  by  fresh  proceedings,  and   the
\n        direction,  as  above,  is  intended to short circuit the
\n        formalities.  We direct the first  respondent  to  ensure
\n        that,  if  necessary, police protection is granted to the
\n        third respondent to regain his possession,  after  orders
\n        are  passed  by the Appellate Authority in consequence to
\n        this judgment.  The third respondent will be entitled  to
\n        Rs.1000\/(Rupees one thousand only) as costs.
\n        \tThe writ petition is dismissed.\n<\/p>\n
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                                     Dated: 29th day of July, 2005<\/p>\n<\/blockquote>\n","protected":false},"excerpt":{"rendered":"
Kerala High Court S.Shameem vs The City Police Commissioner IN THE HIGH COURT OF KERALA AT ERNAKULAM WP(C) No. 26151 of 2005 1. S.SHAMEEM, S\/O.SHAHUL HAMEED, … Petitioner Vs 1. THE CITY POLICE COMMISSIONER, … Respondent 2. THE CIRCLE INSPECTOR OF POLICE, 3. R.SOORAJ, S\/O.RAMDAS, LAKSHMI SADAN, For Petitioner :SRI.V.JAYAKUMAR For Respondent :SRI.V.GIRI The Hon’ble […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,21],"tags":[],"class_list":["post-126178","post","type-post","status-publish","format-standard","hentry","category-high-court","category-kerala-high-court"],"yoast_head":"\nS.Shameem vs The City Police Commissioner - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/s-shameem-vs-the-city-police-commissioner\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"S.Shameem vs The City Police Commissioner - 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