Francis Kidangan v. The South Indian Bank Ltd
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR TUESDAY, THE 8TH DAY OF SEPTEMBER 2015/17TH BHADRA, 1937 WP(C).No. 27022 of 2015 (C) ---------------------------- PETITIONER/PLAINTIFF:
----------------------------------- FRANCIS KIDANGAN, S/O. CHUMAR, KIDANGAN HOUSE, HOUSE NO. 26/1429, ANCHERI P.O., OLLUR VILLAGE, THRISSUR.
BY ADVS.SRI.K.B.GANGESH, SMT.SMITHA CHATHANARAMBATH.
RESPONDENTS/RESPONDENTS:
------------------------------------------------
1. THE SOUTH INDIAN BANK LTD., REGIONAL OFFICE, THRISSUR-680 001, REPRESENTED BY CHIEF MANAGER & AUTHORIZED OFFICER, SRI. V.C.FRANCIS.
2. ROSAMMA VARKEY, W/O. LATE P.I. VARKEY, ALAPPAT PALATHINGAL HOUSE, VII/448/I, ANCHERY P.O., THRISSUR-680 006.
3. ITTY @ RENJU @ VINU VARKEY, S/O. LATE P.I. VARKEY, ALAPPAT PALATHINGAL HOUSE, VII/448/I, ANCHERY P.O., THRISSUR-680 006.
4. SUNNY FRANCIS, S/O. K.I. FRANCIS, KANDAMKULATHY HOUSE, RAILWAY STATION ROAD, IRINJALAKUDA, THRISSUR DISTRICT-680 121.
5. SEBI ALAPPATT, S/O. LATE ITTIACHAN, RESIDING AT ALAPPATT PALATHINGAL, VARKEYS BHAVAN, LOURDPURAM, THRISSUR-5.
6. TOBY ALAPPATT, S/O. LATE P.V. ITTIACHAN, RESIDING AT ALAPPATT PALATHINGAL, VARKEYS BHAVAN, LOURDPURAM, THRISSUR-05.
WP(C).No. 27022 of 2015 (C)
7. DENNIS P.I., S/O. LATE P.V. ITTIACHAN, RESIDING AT ALAPPATT PALATHINGAL, VARKEYS BHAVAN, LOURDPURAM, THRISSUR-5.
R1 BY SRI.K.K. CHANDRAN PILLAI, SENIOR SC, ADV. SRI.K.S.DILIP, SC.
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 08-09-2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
rs.
WP(C).No. 27022 of 2015 © APPENDIX PETITIONER'S EXHIBITS:- EXHIBIT P1- TRUE COPY OF LEASE DEED EXECUTED BY THE PETITIONER AND 2ND RESPONDENT ON 14-03-2007.
EXHIBIT P2- TRUE COPY OF THE JUDGMENT OF THIS HON'BLE COURT IN WP(C).NO.19376/2015 DATED 30-07-2015.
EXHIBIT P3- TRUE COPY OF THE ORDER PASSED BY CHIEF JUDICIAL MAGISTRATE COURT, THRISSUR IN CMP NO. 1599/2012 DATED 31-08-2015.
EXHIBIT P4- TRUE COPY OF CMP NO. 1599/2012 ON THE FILE OF CHIEF JUDICIAL MAGISTRATE COURT, THRISSUR.
RESPONDENT'S EXHIBITS:- NIL.
//TRUE COPY// P.S. TO JUDGE rs.
A.K.JAYASANKARAN NAMBIAR, J.
............................................................. ............................................................. Dated this the 8th day of September, 2015
J U D G M E N T
The petitioner along with his family is residing in House No.26/1429 within the territorial limits of Thrissur Corporation, which were taken on lease from the respondents 2 and 3 on 14.03.2007. In the writ petition, the petitioner is aggrieved by Ext.P3 order passed by the Chief Judicial Magistrate Court, Trissur, rejecting the claim of tenancy raised by the petitioner under Section 14 of the Securitisation and Reconstructions of Financial Assets and Enforcement of Security Interest Act, 2002, hereinafter referred to as the 'SARFAESI Act'. The proceedings initiated by the respondent bank against the defaulters of the loan amounts culminated in proceedings taken for obtaining possession of the secured assets under the SARFAESI Act, and this was the context in which the Chief Judicial Magistrate was called upon to decide as to whether the petitioner, who claimed to be a tenant, could obtain the benefit of the judgment of the Supreme Court in Harshad Govardhan Sondagar v. International Assets Reconstruction Company Limited (2014
(3) KLT 357). The learned Magistrate considered the case of the
petitioner and, in Ext.P3 order, entered a specific finding that the lease agreement that was relied upon by the petitioner was dated 14.03.2007 whereas the documents produced by the respondent bank clearly indicated that the secured asset was mortgaged by the borrowers in favour of the bank on 20.10.2004. It was evident therefore that the tenancy was created subsequent to the mortgage and that the ratio of the judgment in Harshad Govardhan Sondagar v. International Assets Reconstruction Company Limited (2014
(3) KLT 357) would not come to the aid of the petitioner in the instant case. On a consideration of Ext.P3 order and the reasoning contained therein, I am of the view that the said order does not call for any interference in these proceedings under Article 226 of the Constitution of India. Accordingly, I dismiss the writ petition in its challenge against Ext.P3 order.
Counsel for the petitioner would pray for some time to vacate the premises, which is the secured asset as far as the respondent bank is concerned. It is submitted on behalf of the petitioner that, if sometime is granted, then the petitioner will vacate the premises and surrender vacant possession of the premises to the respondent bank. Taking note of the said submission of counsel for the petitioner, I grant the petitioner time up to 30.09.2015 to vacate the premises,
making it clear that, on 30.09.2015 the petitioner shall handover the vacant possession of the premises in question to the respondent bank. A.K.JAYASANKARAN NAMBIAR JUDGE mns