Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE N.NAGARESH MONDAY, THE 26TH DAY OF FEBRUARY 2024/7TH PHALGUNA, 1945 WP(C) NO. 7542 OF 2024 PETITIONER:
ASHA AJIRAJ, AGED 49 YEARS, W/O ADV.AJIRAJ.G.R, MANAGING PARTNER, SNOW WHITES ASSOCIATES, OPPOSITE IOC PETROL PUMP, NELLIMUKKU, THIRUMULLAVARAM P.O, KOLLAM- 691 012., PERMENANTLY RESIDING AT SREESHYLAM, SOUHRIDA NAGAR 39, KOLLAM, KAVANAD P.O, PIN – 691003 BY ADVS.
P.T.DINESH ANJU DIVAKAR RESPONDENTS:
1 THE AUTHORISED OFFICER/CHIEF MANAGER, UCO BANK, QUILON BRANCH, KHAISE BUILDING, BRANCH ROAD, QUILON, PIN - 691001 2 SHAJINI, AGED 56 YEARS, W/O SULAIMAN KUNJU, PALAMOOTTIL VEEDU KOLLAM, THIRUMULLAVARAM P.O,, PIN – 691012 BY ADV. SRI.DEEPAK JOY, SC THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 26.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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JUDGMENT Dated this the 26th day of February, 2024 The petitioner, who is Managing Partner of the Firm “Snow White Associates”, which is running a showroom of “Total” Brand Tools by the name and style as “Total One Stop Tools Station”, has approached this Court seeking to declare that the petitioner is entitled to seek statutory remedies as per Section 17(4A) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 or any other appropriate remedies to enforce her right as a registered tenant in the 950 Square Feet show room in Thirumullavaram, Kollam District.
2.
The petitioner also seeks to command the 1st respondent to grant reasonable time for the petitioner to seek statutory remedies as per Section 17(4A) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002.
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3.
The petitioner states that the petitioner has been running the business in the very same premises since the year 18.11.2021 onwards. The petitioner now holds a registered rent deed. Due to the liabilities created by the borrower of a loan account in respect of which the landlord is a guarantor, the UCO Bank proceeded against the guarantor's property in which the petitioner is running the business. The petitioner is ought to be evicted invoking the provisions of Section 14 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002. Immediately on coming to know of the proceedings, the petitioner approached the Chief Judicial Magistrate's Court and the Chief Judicial Magistrate's Court has deferred the coercive proceedings till 27.02.2024.
4.
The petitioner states that the petitioner is running the business on the basis of a lease deed and after obtaining GST registration and in compliance of all statutory formalities. The petitioner has invested huge amounts for
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the business. The petitioner is ready and willing to pay the amount to the Bank or any person suggested by the Bank.
5.
Standing Counsel entered appearance and resisted the writ petition. The Standing Counsel pointed out that the original mortgage of the property was in the year 2018 and 2020. After mortgaging the property, the guarantor has deliberately inducted tenants into the property. The registered tenancy deed of the petitioner is of the year 2023. When the Valuer of the Bank assessed the building in question, the Valuer has found and reported that the building is 'owner occupied' building, which indicated that there is no valid tenancy at that point of time.
6.
Since the mortgage is much earlier than the alleged tenancy, and since the tenant had no registered documents at the time of taking tenancy, the petitioner cannot seek any relief from this Court. The petitioner's registered tenancy is only of the year 2023, that is much after the mortgage and much after the issuance of Section 32 notice. The petitioner is hand in glove with the borrower
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and the guarantor. This writ petition is intended to stop the recovery proceedings. The Bank has already sold the property to a third party though possession is not handed over. Unless, the Bank is able to give vacant possession to the auction purchaser, the auction purchaser may proceed against the Bank. In the facts of the case, the writ petition is liable to be dismissed.
7.
I have heard the learned counsel for the petitioner and the learned Standing Counsel representing the respondents.
8.
The petitioner had taken Ext.P3 GST registration for the business in question which was valid from 28.11.2021, prior to Section 13(2) notice. The petitioner has also produced Ext.P1 Lease Deed which is stated to be a Registered Lease Deed entered into on 08.06.2023.
9.
The tenants like the petitioner have a statutory remedy now against the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 and the act has been so amended by inserting
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Section 17(4A). The petitioner states that the petitioner shall approach the Debts Recovery Tribunal, if a breathing time is granted. In the facts of the case, I am of the view that the petitioner can be granted a breathing time to move the Debts Recovery Tribunal, in the interest of justice.
The writ petition is therefore disposed of directing the respondents to defer coercive proceedings, if any, including one under Section 14 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 for a period of 14 days from today. It is made clear that no further time will be granted to the petitioner in this regard by this Court.
Sd/- N. NAGARESH JUDGE SR
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APPENDIX OF WP(C) 7542/2024 PETITIONER'S EXHIBITS:
Exhibit P1 TRUE COPY OF THE REGISTERED LEASE DEED
NO.1119/1/2023,
DATED 08/06/2023, KOLLAM SUB REGISTRY OFFICE BY AND BETWEEN THE PETITIONER AND THE 2ND RESPONDENT.
Exhibit P2 TRUE COPY OF THE PHOTOGRAPHS OF THE BUILDING
BEARING
NO.
KMC 53/2755/2565, OPPOSITE TO IOC PETROL PUMP, NELLIMUKKU, KOLLAM Exhibit P3 TRUE COPY OF THE GOODS AND SERVICE TAX REGISTRATION CERTIFICATE ISSUED BY THE GOODS AND SERVICE TAX DEPARTMENT, GOVERNMENT OF INDIA.
Exhibit P4 TRUE COPY OF THE RELEVANT PART OF THE NOTICE INTENDING TO TAKE PHYSICAL POSSESSION OF THE LEASED BUILDING ON 20.02.2024 ISSUED BY THE ADVOCATE COMMISSIONER.