The secured creditor's right to repossess property under the SARFAESI Act prevails against third-party trespassers post-judicial possession.

JUDGMENT

(Dated this the 16^th day of January, 2026)

The petitioner has approached this Court by filing the present writ petition seeking a direction to the 1^st respondent to take immediate action on Ext.P5 and to remove respondents 2 and 3 from the property covered by Ext.P1 sale deed and to restore possession of the said property to the petitioner. Respondents 2 and 3 had availed a housing loan from the petitioner by mortgaging an immovable property having an extent of 2.77 Ares in Re.Sy.No.278/5 of Madapally Village, Changanassery Taluk, Kottayam District. On default in repayment, proceedings were initiated under the SARFAESI Act and the matter was taken before the Chief Judicial Magistrate, Kottayam in M.C.No.668 of 2023, pursuant to which the Magistrate passed an order appointing an Advocate Commissioner to take physical possession of the secured asset. The said order was executed, and physical possession was taken and handed over to the petitioner. Thereafter, respondents 2 and 3 trespassed into the property and started residing therein. In that circumstance, the petitioner submitted Ext.P5 complaint before the 1^st respondent. Alleging inaction on the part of the 1^st respondent, the petitioner has filed the present writ petition under Article

226 of the Constitution of India .

2. The learned Government Pleader, on instructions, submits that the 1^st respondent is ready to give any protection sought for taking repossession of the secured assets. It is also submitted that, as on today, nobody is residing in the property. Notice issued from this Court was received by respondents 2 and 3. The fact remains that respondents 2 and 3 have received the notice at the very same address, which is the secured asset.

3. A Division Bench of this Court in Dewan Housing Finance Corporation Ltd. v. Superintendent of Police, Malappuram and others [ 2018 (3) KHC 48 ], held as follows:

“....The exercise of right by the bank to take possession of the secured asset is a statutory right under the SARFAESI Act . When such statutory rights are being exercised by a secured creditor, it is not open for any person for that reason to trespass into such property which has already been taken possession. If such attitude is permitted, the statutory right of the secured creditor will become an eyewash and it may not be possible for the Bank to realise the secured debt. At any rate, since the possession of the property had already been taken as per the direction issued by the Chief Judicial Magistrate, we are of the view that the direction sought for is reasonable.

8. Having regard to the aforesaid factual situation, we are of the view that this is a fit case in which the Police has to be directed to restore possession of the property to the petitioner, Finance Company. If at all the petitioner has any right in respect of the property it shall be open for him to take appropriate proceedings in accordance with law.”

Therefore, I deem it appropriate to dispose of this writ petition directing the 1^st respondent to grant sufficient police protection or help to the petitioner to take repossession of the secured assets, which had already been taken pursuant to the order in M.C.No.668 of 2023, within a period of two weeks from today.

Sd/-