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2025 DIGILAW 2370 (KER)

Ashok Harry Pothen v. City Police Commissioner

2025-09-08

ANIL K.NARENDRAN, MURALEE KRISHNA S.

body2025
JUDGMENT : Muralee Krishna, J. The 6 th respondent in W.P.(C)No.21083 of 2025 filed this writ appeal under Section 5(i) of the Kerala High Court Act , 1958, challenging the interim order dated 21.08.2025 passed by the learned Single Judge in that writ petition, whereby respondents 1 to 3 in the writ petition were directed to comply with Ext.P18 order dated 22.07.2024 passed by the Chief Judicial Magistrate, Thiruvananthapuram, in M.C. No 592 of 2024 and file a compliance report on or before 10.09.2025, unless restrained by any lawful authority. 2. W.P.(C)No.21083 of 2025 is filed by the 10 th respondent herein, namely, Indian Bank, seeking the following reliefs: “(i) Issue a Writ of Mandamus or other appropriate writs, Orders or Directions commanding the respondents 1 to 3 to give effect to the order passed by the Chief Judicial Magistrate Court, Thiruvananthapuram in M.C.No.592 of 2024 by taking physical possession of the secured asset which is the subject matter of this Writ Petition (c), as expeditiously as possible at any rate within a time frame to be fixed by this Hon’ble Court, in the interest of justice, (ii) To issue a Writ to declare that, the 2 nd and 3 rd respondents are duty bound to assist the secured creditor from taking possession of the secured asset in view of Section 14 of the SARFAESI Act”. 3. Going by the averments in the writ petition, the 10 th respondent Bank, which is a secured creditor in terms of the provisions of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act , 2002 (‘SARFAESI Act’, in short), had extended various financial assistance to the appellant and respondents 4 to 9 herein. Security Interest was created over two items of property located in Kowdiar village in Thiruvananthapuram. The appellant and respondents 4 to 9 failed to make payments, which compelled the Bank to initiate coercive proceedings, as evident from Exts.P1 to P8. This resulted in the appellant and respondents 4 to 9 unleashing a series of litigations before the Debts Recovery Tribunal, the Debts Recovery Appellate Tribunal, as well as before this Court. However, nothing materialised, and finally the Bank preferred application under Section 14 of the SARFAESI Act before the Chief Judicial Magistrate Court, Thiruvananthapuram. This resulted in the appellant and respondents 4 to 9 unleashing a series of litigations before the Debts Recovery Tribunal, the Debts Recovery Appellate Tribunal, as well as before this Court. However, nothing materialised, and finally the Bank preferred application under Section 14 of the SARFAESI Act before the Chief Judicial Magistrate Court, Thiruvananthapuram. Though the 3 rd respondent was appointed as the Advocate Commissioner, for reasons best known to him, he did not take possession of the secured asset. Finally, he gave notice to take possession of the secured asset on 17.05.2025. But he refused to take possession on that day, pointing out that the asset is big. The same was adjourned to 24.05.2025. On that day, he had stated that the appellant and respondents 4 to 9 had approached this Court and sought to postpone the same. Thereafter, the writ petition referred was withdrawn on 29.05.2025. At the request of the Bank, the Advocate Commissioner visited the secured asset on 03.06.2025 and stated that unless and until the borrowers voluntarily vacate the secured asset, he will not take possession of the same. The 2 nd respondent also supported the Advocate Commissioner. Virtually, the respondents 2 and 3 had defeated the very purpose for which Section 14 of the SARFAESI Act had been enacted. Hence, the Bank filed the writ petition. 4. On 21.08.2025, when the writ petition came up for consideration, the learned Single Judge passed the impugned interim order mentioned above. Being aggrieved, the appellant is now before this Court with this writ appeal. 5. Heard the learned counsel for the appellant, the learned counsel for the 10 th respondent Bank and also the learned Senior Government Pleader. 6. The learned counsel for the appellant would submit that the direction issued by the learned Single Judge in the interim order is, in effect granting of the final relief sought in the writ petition. In fact, the recovery proceedings initiated by the Bank were challenged by the appellant before the Debts Recovery Tribunal from time to time. After the issuance of notices under Section 13 (2) of the SARFAESI Act, the appellant made a substantial payment of Rs.3,98,15,023/- to the Bank, which is described by way of a chart in the appeal memorandum. Even now, S.A.No.438 of 2024, filed by the appellant before the Debts Recovery Tribunal, challenging the recovery proceedings initiated by the Bank, is pending consideration. Even now, S.A.No.438 of 2024, filed by the appellant before the Debts Recovery Tribunal, challenging the recovery proceedings initiated by the Bank, is pending consideration. The interim order granted by the learned Single Judge without considering all these aspects on merits is liable to be set aside. 7. On the other hand, the learned counsel for the 10 th respondent Bank would submit that the attempt of the appellant is to thwart the recovery proceedings, which is clearly mentioned in the writ petition filed by the 10 th respondent. Hence, considering those pleadings, the learned Single Judge passed the interim order, which necessitates no interference by this Court by exercising the appellate jurisdiction. 8. The circumstances in which the Court can grant the interim relief, though it amounts to the granting of the final relief itself, are laid down by the Apex Court in Deoraj v. State of Maharashtra [ 2004(4)SCC 697 ] wherein it is held as under: “11. The courts and tribunals seized of the proceedings within their jurisdiction take a reasonable time in disposing of the same. This is on account of fair - procedure requirement which involves delay intervening between the previous and the next procedural steps leading towards preparation of case for hearing. Then, the courts are also overburdened and their hands are full. As the conclusion of hearing on merits is likely to take some time, the parties press for interim relief being granted in the interregnum. An order of interim relief may or may not be a reasoned one but the factors of prima facie case, irreparable injury and balance of convenience do work at the back of the mind of the one who passes an order of interim nature. Ordinarily, the court is inclined to maintain status quo as obtaining on the date of the commencement of the proceedings. However, there are a few cases which call for the court's leaning not in favour of maintaining the status quo and still lesser in percentage are the cases when an order tantamounting to a mandamus is required to be issued even at an interim stage. There are matters of significance and of moment posing themselves as moment of truth. Such cases do cause dilemma and put the wits of any judge to test. 12. Situations emerge where the granting of an interim relief would tantamount to granting the final relief itself. There are matters of significance and of moment posing themselves as moment of truth. Such cases do cause dilemma and put the wits of any judge to test. 12. Situations emerge where the granting of an interim relief would tantamount to granting the final relief itself. And then there may be converse cases where withholding of an interim relief would tantamount to dismissal of the main petition itself; for, by the time the main matter comes up for hearing there would be nothing left to be allowed as relief to the petitioner though all the findings may be in his favour. In such cases the availability of a very strong prima facie case - of a standard much higher than just prima facie case, the considerations of balance of convenience and irreparable injury forcefully tilting the balance of the case totally in favour of the applicant may persuade the court to grant an interim relief though it amounts to granting the final relief itself. Of course, such would be rare and exceptional cases. The court would grant such an interim relief only if satisfied that withholding of it would prick the conscience of the court and do violence to the sense of justice, resulting in injustice being perpetuated throughout the hearing, and at the end the court would not be able to vindicate the cause of justice. Obviously such would be rare cases accompanied by compelling circumstances, where the injury complained of is immediate and pressing and would cause extreme hardship. The conduct of the parties shall also have to be seen and the court may put the parties on such terms as may be prudent”. (underline supplied) 9. From the pleadings and materials on record, we notice that the 10 th respondent has initiated the recovery proceedings against the appellant under the provisions of the SARFAESI Act. On a petition filed by the 10 th respondent Bank before the Court of Chief Judicial Magistrate, Thiruvananthapuram, under Section 14 of the SARFAESI Act, the said Court issued Ext.P18 warrant authorising the Advocate Commissioner to take possession of the secured asset. Contending that respondents 1 to 3 are neglecting to take possession of the secured asset, the Bank filed the writ petition. Contending that respondents 1 to 3 are neglecting to take possession of the secured asset, the Bank filed the writ petition. But while going through the reliefs sought in the writ petition and that granted by the learned Single Judge by way of an interim order, it is evident that the interim relief granted by the learned Single Judge is, in effect, granting one of the final reliefs sought in the writ petition. But to grant that relief no such circumstance as mentioned in Deoraj [ 2004(4)SCC 697 ] is stated in the impugned order. 10. It is gatherable from the pleadings and materials on record that the recovery proceedings were initiated by the Bank against the appellant, and several rounds of litigation were also held between the parties in respect of the same. During the course of arguments, the learned counsel for the appellant pointed out that Ext.P15(a) notice dated 05.05.2025 issued by the Advocate Commissioner in pursuance to Ext.P18 warrant issued by the Chief Judicial Magistrate was not endorsed to respondents 1 and 2 herein. In such circumstances, there is force in the submission of the learned counsel for the appellant that, without giving due intimation to respondents 1 and 2 to assist the Advocate Commissioner to take possession of the secured asset, it cannot be said that respondents 1 and 2 are not cooperating to take possession of the secured asset. The 10 th respondent has no case in the writ petition that they moved the Court of the Chief Judicial Magistrate to direct respondents 1 and 2 to assist the 3 rd respondent Advocate Commissioner to take possession of the secured asset. Whatever it may be, we are not proposing to enter into those aspects in this appeal for the simple reason that the impugned interim order granted by the learned Single Judge is even otherwise liable to be set aside for the reason of granting the final relief itself by way of interim order, without considering the merits of the contentions raised by the parties in the writ petition, including that of the pendency of the proceedings before the Tribunal. Having considered the pleadings and materials on record and the submissions made at the Bar, we are inclined to allow the writ appeal by setting aside the impugned order dated 21.08.2025 in W.P.(C)No.21083 of 2025, without expressing anything on the legal and factual contentions raised by the parties in the writ petition. The 10 th respondent-writ petitioner may move before the learned Single Judge to take up the writ petition itself on merits, and we are sure that in that event the learned Single Judge will pass a considered order on merits, either interim or final, after taking into consideration the rival contentions raised by the parties. Needless to mention that before passing any such order/judgment, the appellant will also be given an opportunity to put forward his contentions on merit, by filing a counter affidavit with supporting documents, if any, in the writ petition.