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2005 DIGILAW 631 (KER)

S. Shameem v. The City Police Commissioner

2005-09-23

M.N.KRISHNAN, M.RAMACHANDRAN

body2005
Judgment :- This is an application for police protection. The petitioner had invited our attention to Ext.15 representation submitted by him dated 31-08-2005. Although it was addressed to the Commissioner of Police, Thiruvananthapuram, he submitted that the third respondent was attempting to take law in his hands so as to evict him from the tenanted premises unlawfully, where he was conducting business, and it was imperative that the police is directed to render sufficient help so as to protect him. 2. According to the petitioner, Ext. P1 rent deed dated 01-06-2001 in respect of a shop room governed the relationship between himself and the third respondent, who was the landlord. He had been authorised to conduct a readymade dress shop and due licence had been granted by the corporation for the business. Later on arrears of rent fell due and R.C.P.No.6 of 2004 had come to be filed, which resulted in an order for eviction. Against the said order, R.C.A.NO.9 of 2005 had been filed by him and the First Additional district Judge, Thiruvananthapuram in I.A.No.384 of 2005 in R.C.A.No.9 of 2005 had stayed the order of eviction. It was not attempted to be vacated and the submission was that by use of force notwithstanding the above order Ext.P4), forcible eviction was being attempted. 3. Prima facie it had been found that the petitioner was entitled to an interim order. This Court had directed respondents 1 and 2 to give adequate protection to ensure that is possession and occupation of the building is not interfered with at the instance of the third respondent or any strangers. 4. The third respondent had entered appearance and had filed a counter affidavit and further requested that the interim orders were to be appropriately modified. Senior Counsel Sri S.V.S. Iyer, appearing for the third respondent, especially highlighted the circumstance that making use of the interim orders passed, in a most dishonest manner the petitioner had secured further orders from the Rent Control Appellate Authority in I.A.No.2193 of 2005, even by impleading the Circle Inspector of police, Thiruvananthapuram as an additional respondent to the proceedings and had upset the continued possession of the landlord. He further submitted that the writ petition was not maintainable. He further submitted that the writ petition was not maintainable. This Court has been taken astray, as the full and relevant facts have not been brought to its attention when the matter came up for admission and the landlord has been inflicted with civil injury. He submits that the petitioner had duty to present full facts and then only could have made a request for exercising the discretionary jurisdiction, in proceedings under Article 226 of the Constitution of India. It is submitted that civil suits and other proceedings are pending before the appropriate authorities and the short cut method employed by the petitioner was illegal. 5. We feel that the fuller details supplied to us do indicate that the petitioner is guilty of indiscretion. He had presented the facts as if high-handed action had been resorted to by the landlord. Of course, the landlord was bound by interlocutory orders passed by the Rent Control Appellate authority, which prohibited him from exercising his right of eviction. But the tenant appears to have been divested of possession as a consequence of certain independent collateral proceedings only, unconnected with proceedings under the Rent Control Act. 6. Documentary evidence had been supplied by the third respondent and the affidavit gives further details. It is submitted that Ext. P1 is a sham document and it did not govern the rental arrangements between the parties. Reliance was placed on Ext.R3(a) dated 01-10-2001, which was an agreement on which parties had put on record their respective rights and liabilities and this was to be in operation for a period of six months from 01-10-2001. He admits that the arrangement had been continuing thereafter, but here was heavy default which necessitated filing of a rent control petition and it had ended in a decree of eviction, although an appeal therefrom is pending. It is stated that although the rental arrangements had started from May 2001 onwards, there was no payment of Rs.5 lakhs as advance, and during the subsistence of the rental arrangement the petitioner in the writ petition had requested the third respondent to stand as guarantor for a loan from Union Bank of India. It was for Rs.5 lakhs and the Bank required the landlord to create a mortgage in respect of the shop room. Security was consequently created by mortgage and deposit of title deed of the tenanted premises. This was to oblige the tenant. It was for Rs.5 lakhs and the Bank required the landlord to create a mortgage in respect of the shop room. Security was consequently created by mortgage and deposit of title deed of the tenanted premises. This was to oblige the tenant. There was huge default in repayment of the loan amount and the Bank had initiated action for recovery under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (for short Securitisation Act). Notices had been issued by the Bank from July, 2001 onwards and as a guarantor the third respondent could not have evaded from responsibility. It so happened that the Bank had exercised their right under the Securitisation Act and they had taken possession of the mortgaged property on 20-12-2004. Ext.R3(d) is produced in support thereof. 7. By Ext. R3(d), the tenant was required to pay up the entire dues, and as a measure in their discretion, at his request, possession of the property was given to him by the Bank, recording his undertaking to hold the property under trust on behalf of the Bank to enable him to remit the dues to the bank latest by 5th of January, 2005. Such payments had not been there. As reserved by Ext. R3(d), possession was taken back by them on 07-05-2005. From 20-12-2004 there was no tenancy in operation because of the impact of Securitisation Act. 8. Counsel for the third respondent further invited out attention to the notices issued by the Union Bank of India proclaiming their possession as envisaged by the Securitisation Act in news papers, by notices dated 14-05-2005. It had been notified that the borrower as well as the guarantor had failed to pay back the dues and the properties had been taken possession on 07-05-2005. General public were informed that no transactions in respect of the properties would have bound the superior claims of the Bank. 9. The petitioner could not have been considered as in possession or ownership of the properties thereafter. The shop room was a valuable asset and the predicament of the third respondent was that because of the default committed by the petitioner, property would have been irrevocably lost to him. The third respondent, according to him, had cleared the outstanding dues by remitting Rs.6,72,000/- towards the loan amount, as guarantor. The affidavit as also Ext. The shop room was a valuable asset and the predicament of the third respondent was that because of the default committed by the petitioner, property would have been irrevocably lost to him. The third respondent, according to him, had cleared the outstanding dues by remitting Rs.6,72,000/- towards the loan amount, as guarantor. The affidavit as also Ext. R3(g) indicate that a further sum of Rs.6,03,000/- had been paid by the third respondent towards an other loan account simultaneously, as the Bank was utilizing the opportunity to clear the dues not only of the petitioner, but also his relative, in whose favour also the third respondent was considered as guarantor. He had no other go than to shell out the money. He submits that the Bank had handed over possession of the property to him, and such possession is evidenced by Certificate dated 12-08-2005, copy of which is marked as Ext.R3(h). 10. According to the third respondent, the shop was empty as early as from January, 2005 onwards. There were efforts taken by the petitioner to interfere with his possession by breaking open the locks and attempting to place goods in the shop room so as to make it appear that he retained control over the properties. On complaints being made, police had given the third respondent sufficient help. It was after these adventures that the petitioner had dishonestly moved this court and obtained orders. It had been further misutilised by misrepresenting the Rent Control Appellate Authority. 11. The version of the third respondent, as above, of course is controverted by the petitioner. He submits that it was highly improbable that a landlord might have come to stand as guarantor for a tenant. It is also stated that the third respondent has not helped the relatives of the petitioner for securing loans, for any purposes, and the claims as above are bereft of truth. He relied on Ext.P1 as an authentic document and also referred to pendency of another suit between them as O.S.NO.1005 of 2003 and points out that the disputed questions could be more profitably adjudicated there. It is submitted that there was no suppression, as alleged, and in any case the third respondent was bound by Ext.P4 order of the Appellate Authority and he could not have any superior claims for possession, as their relations were governed by the Kerala Buildings (Lease and Rent Control) Act. It is submitted that there was no suppression, as alleged, and in any case the third respondent was bound by Ext.P4 order of the Appellate Authority and he could not have any superior claims for possession, as their relations were governed by the Kerala Buildings (Lease and Rent Control) Act. A short cut for eviction was impermissible and any eviction could have been brought about only on the grounds authorised by the statute. These were the submissions in short. 12. However, it is difficult for us to accept the explanations of the petitioner to show that there was no suppression of relevant facts. In retrospect it can safely be assumed that if this Court had been supplied with details, as have now come forth, the petitioner hardly would have obtained an interlocutor order, practically restoring him to possession, which he had not at the relevant time. Necessarily the steps have to be retraced. Because of the impact of the Securitisation Act, the tenant had lost the tenancy right, and the Bank had come to full possession, which had even been recognised by the tenant, in the course of the said proceedings. 13. Under Section 13(4) of the Securitisation Act, in case the borrower fails to discharge his liability, the secured creditor is authorised to take recourse to the measures stipulated by the section. This is in recognition of the provisions of the Act that any security interest created in favour of the secured creditor may be enforced without the intervention of the Court or Tribunal. Thus, a creditor is entitled to take possession of the secured assets of the borrower including the right to transfer by way of lease, assignment or sale for realizing the secured asset. The right also includes taking over management of the secured assets by right to transfer by way of lease, assignment or sale. The appointment of a person to manage the secured assets, the possession of which has been taken over by the secured creditor is also contemplated. Sub-section (6) also lays down that any transfer of secured asset after taking possession thereof shall vest in the transferee all rights in, or in relation to, the secured asset transferred as if the transfer had been made by the owner of such secured asset. 14. Sub-section (6) also lays down that any transfer of secured asset after taking possession thereof shall vest in the transferee all rights in, or in relation to, the secured asset transferred as if the transfer had been made by the owner of such secured asset. 14. The only circumstance that the guarantor (third respondent herein) was the owner of the secured asset need not saddle him with any disability. In any case, the Act does not provide for any such restriction. By the operation of the section, the transfer brings with it all the proprietary rights that are usually available in respect of the holding. Although it is contended by Sri. Jayakumar that so far as a tenanted premises, to which provisions of the Kerala Buildings (Lease and Rent Control Act applies, the tenancy could have been terminable only in the manner authorised by the said law, we do not think the above argument can have any relevance in view of section 35 of the Securitisation Act. The provisions of the Securitisation Act shall have effect notwithstanding any thing in consistent therewith contained in any other law for the time being in force. In respect of transactions governed by the said Act, the overriding provisions effectively nullify the rights normally admissible even to a tenant, as available under the Rent Control Act, as it can be only subservient to a later Central enactment. 15. The Rules under the Securitisation Act extensively deal with the procedure to be adopted in respect of sale of immovable assets. Although in the present case, after publication of notice, there was a settlement of debts and further proceedings for sale were not required to be followed, it cannot be disputed that the Bank in law came to possession of the property and such rights, including possession, had been handed over to the landlord on payment of defaulted amounts. The contention of the petitioner is that he was in possession all through out. But it is not found as one submission, which could be countenanced. Naturally, he is not therefore entitled to police protection for preservation of any imaginary rights. Although we can foresee possibility of misuse of such provisions in the Securitization Act, in the distant horizon, at least in this case, we have nothing worthwhile to assume that the landlord was employing any circuitous methodology. 16. Naturally, he is not therefore entitled to police protection for preservation of any imaginary rights. Although we can foresee possibility of misuse of such provisions in the Securitization Act, in the distant horizon, at least in this case, we have nothing worthwhile to assume that the landlord was employing any circuitous methodology. 16. Normally, after vacating the interim orders, the writ petition was to be dismissed. But, as pointed out by the senior counsel, further orders had come to be passed by the Rent Control Appellate Authority, on the strength of the interim orders passed by this Court, in I.A.NO.2193 of 2005 on 06-09-2004. It essentially has to be noticed. We feel that follow up directions are required to be made. On receipt of a certified copy of this judgment, the landlord will be entitled to move the said Authority praying for appropriate orders, that may be necessary, and orders are to be passed by the Appellate authority on the application so filed within one week from, the date of presentation of the application, duly taking notice of the observations made by us, and especially that the writ petition itself was misconceived and irregular. 17. On the facts of the case, we feel that we have to stretch our jurisdiction at least to some extent, so as to ensure that process of the Court are not misused. We do not think that the third respondent is to be again subjected to the disability of challenging orders in I.A.No.2193 of 2005 by fresh proceedings, and the direction, as above, is intended to short circuit the formalities. We direct the first respondent to ensure that, if necessary, police protection is granted to the third respondent to regain his possession, after orders are passed by the Appellate Authority in consequence to this judgment. The third respondent will be entitled to Rs.1000/- (Rupees one thousand only) as costs. The writ petition is dismissed.