Back
2025 Supreme(Online)(Ker) 42550
IN THE HIGH COURT OF KERALA AT ERNAKULAM
MOHAMMED NIAS C.P., J
THE AUTHORIZED OFFICER, TATA CAPITAL HOUSING FINANCE LTD. – Appellant
Versus
SUPERINTENDENT OF POLICE, POWER HOUSE – Respondent
WP(C) NO. 29372 OF 2025
For the Appellants/Petitioners: PRATHEESH A C.
For the Respondents: SRI.C.P.PEETHAMBARAN, SRI. K.M. FAISAL
The court emphasized that immediate police intervention was not warranted due to ongoing lawful claims of possession, directing respondents to utilize the Debts Recovery Tribunal as per the SARFAESI Act.
Headnote:(A) Constitution of India - Writ of Mandamus - Prayer for police protection against criminal trespass and restoration of possession of property - Claimed lawful possession by respondents based on court decree and auction proceedings - Court declines to grant relief but allows respondents to seek remedy under the SARFAESI Act. (Paras 2, 3)
(B) SARFAESI Act, 2002 - Section 17 - Allows aggrieved parties to approach Debts Recovery Tribunal for grievances against secure creditors.
Facts of the case:
The petitioner sought police protection to remove illegal occupants from property after obtaining lawful possession following auction proceedings, contesting with claims of lawful possession by other respondents.
Findings of Court:
The court held that based on presented evidence and lawful claims, the remedy pursued must initially be addressed through the appropriate Tribunal as per the SARFAESI Act.
Issues: The main issue was the lawful possession of the disputed property and the appropriate forum for addressing grievances concerning property possession.
Ratio Decidendi: The court found it inappropriate to grant immediate relief given the respondents' established claims and the ongoing legal remedies available under the SARFAESI Act. The court prioritizes maintenance of lawful possession until the Tribunal's decision.
Result: Writ petition disposed of.
| Table of Content |
|---|
| 1. petitioner seeks protection and possession restoration. (Para 2) |
| 2. respondents must approach tribunal for remedy. (Para 3) |
JUDGMENT
The writ petition is filed with the following prayers:
“i. Issue a writ of mandamus or any other appropriate writ or order directing Respondent No-1 and 2 forthwith to provide necessary police protection in removing Respondent No-3,4 and 5 from continued criminal trespass in the immovable property having an extent of 24.19 Ares (60 cents) in Building no XII/199 Re-survey No. 5/1/2 Taluk Kunnathunadu, Village Kombanadu, Panchayath Vengoor, Ernakulam District. in pursuance to Exhibit P2, commission report.
ii. Direct 1st and 2nd Respondents to remove Respondent 3,4 and 5 from the above Schedule Property and restore the possession to the Petitioner Bank.
iii. To dispense with the translated version of the vernacular documents produced in the said case. &
iv. Issue such other appropriate writ or order which is deemed just and necessary on the facts and circumstances of the case.”
2. On behalf of the 5th respondent, a counter affidavit has, been filed which reads as under:
“4. The true facts are that I obtained lawful possession of the property strictly in accordance with law, I had filed O.S. No. 165/2012 before the Subordinate Judge's Court, Kottarakkara, on 26.05.2012 for realisation of an amount of <67,46,752/- with interest from the 3d Respondent. The 3rd Respondent remained ex parte, and the suit was decreed in my favour, directing realisation ofthe said amount. A true copy of the Judgement and decree in 0.S. No. 165/2012 dated 21.03.2013 passed by the Subordinate Judge, Kottarakkara is produced herewith and marked as Exhibit R5(a). 5. Pursuant to the decree, the property was brought to auction proceedings before the Sub Court, Perumbavoor, I purchased the property in court auction. An Auction Certificate was duly issued to mne under Order 21Rule 94 CPC. A true copy ofthe Auction Certificate dated O6.02.2021 issued by the Sub Court, Perumbavoor is produced herewith and marked as Exhibit R5 (b). Thereafter, on 24.09.2021, the Ameen delivered possession of theproperty to me, as evident from the Delivery Report. A true copy of the Delivery Report dated 24.09.2021 is produced herewith and marked as Exhibit R5 (c).
6. From that date onwards, I have been in lawful possession and enjoymentof the property. I have paid the land tax and property tax for the said property. A true copy of the land tax receipt dated 04.04.2023 is produced herewith and marked as Exhibit R5 (d). A true copy ofthe property tax receipts dated 30.03.2025 is produced herewith and marked as Exhibit R5 (e). A true copy ofthe Thandaper Account issued by the Village Officer dated 08.11.2023 is produced herewith and marked as Exhibit R5 (f). A true copy of the Possession Certificate issued by the Village Officer dated 24.04.2023 is produced herewith and marked as Exhibit R5 (g). A true copy of the Encumbrance Certificate issued by the Department of Registration, Kerala dated 31.01.2022 is produced herewith and marked as Exibit R5 (h).”
3. In view of the contentions by the contesting respondents that they are in lawful possession of the property based on the orders passed by the competent Civil Court, I am not inclined to grant any relief as sought for at this stage. However, six weeks time is granted to the party respondents to approach the Debts Recovery Tribunal under Section 17 of the SARFAESI Act, 2002 , if they are aggrieved by any actions of the secured creditor. It will be open to the Bank to take such actions to approach this Court again, subject to the orders to be passed in any of the actions initiated by the party respondents.
The writ petition is disposed of as above.
