Kolla Nehrumala & Others vs Bank of Maharashtra & Others

D.V.S.S. Somayajulu, J

1) This Writ Petition is filed by the petitioners questioning the order passed by the learned Chief Metropolitan Magistrate, Vijayawada, in Crl.M.P.No.384 of 2022 in C.F.No.837 of 2022 appointing an Advocate Commissioner to take possession of the house bearing D.No.22-52 in L.P.No.1956/16, Gollapudi Panchayath, Ibrahimpatnam, Krishna District.

2) This Court has heard Ms.P.Haritha, learned counsel representing Sri S.R.Sanku, learned counsel for the petitioners, Sri Ch. Marakondaiah, learned standing counsel for the 1st respondent, Sri D.V.Sasidhar, learned counsel for respondents 2 to 4 and learned Government Pleader for Home appearing for the 5th respondent.

3) The 1st petitioner before this Court, as pointed out by the learned counsel during the course of the submissions, is the daughter-in-law of the 2nd respondent and wife of the 3rd respondent. It is contended that she is residing in property bearing Door No.22-53/1, 4th Line, Saipuram Colony, Near Sai Baba Temple, Gollapudi, Vijayawada. The said property was mortgaged to the 1st respondent bank for a loan. Since the loan was not cleared the bank took proceedings under The Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (in short “SARFAESI Act”) and filed an application before the Chief Metropolitan Magistrate, Vijayawada, in Crl.M.P.No.384 of 2022 under Section 14 of the SARFAESI Act. The Chief Metropolitan Magistrate appointed an Advocate Commissioner to take possession of the property under the said Act. This order is assailed by the 1stpetitioner stating that since it is a shared household she cannot be evicted under this Act. Learned counsel points out that the 1stpetitioner is entitled to various types of orders and in particular she refers to Section 17 (1) and (2) of the D.V.C. Act, that since there is a shared household the petitioners cannot be evicted from the shared household by the third parties. It is also submitted that her husband and father-in-law (in view of the domestic issues), have colluded with the 1st respondent Bank which invoked the provisions of the SARFAESI Act to evict the petitioners. It is contended that the DVC Act is a special Act and that this Court should protect the petitioners and set aside the order passed in the Criminal M.P., by which the Advocate Commissioner was appointed for taking possession.

4) In reply to this, on behalf of the 1st respondent Bank, Sri Ch. Marakondaiah, argued the matter relying upon the counter affidavit / vacate stay petition. It is submitted that the bank is only trying to realise its own debts and is not in any way interested in the marital disputes between the 1stpetitioner and her family. It is pointedout that availing of the loan, creation of the mortgage etc., are all admitted. Therefore, after issuing the required notice, steps were taken to take possession of the property by filing appropriate application under Section 14 of the SARFAESI Act. It is alleged that as the Advocate Commissioner was executing the warrant, the present writ petition has been filed in collusion with the unofficial respondents. It is alleged that the unofficial respondents and the 1st petitioner have hatched a plan to stall the bank from recovering the money due to them by following the procedure stipulated under the SARFAESI Act.

5) Sri D.V.Sasidhar, learned counsel argues the matter on behalf of the unofficial respondents 2 to 4. The affidavit is filed by the 2nd respondent/father-in-law. He strongly denies the allegation that there is a collusion either with the bank or with the writ petitioners. It is also admitted that the loan was availed from the bank. Learned counsel points out that there is no shared household at all, more particularly in the house No.22-53/1. According to the counter affidavit of this respondent and the submissions of the learned counsel the writ petitioner illegally occupied the property by trespassing into the same. It is also stated that the property was rented out to a third party and the tenants were scared away by the writ petitioner, who thereafter physically occupied the same and trespassed in the property. The pending disputes between the writ petitioner and her husband are also highlighted in the course of the submissions. Therefore, it is argued that the interim orders granted should be vacated and the writ petition should be dismissed.

6) This Court has heard all the learned counsel at length. It is a fact that each of them is accusing the other of collusion. The writ petitioner states that the 1st respondent has colluded with the respondents 2 to 4 to forcibly evict her by utilising the provisions of the SARFAESI Act. The 1st respondent contends that the writ petitioner has colluded with the respondents 2 to 4 to prevent them from seeking possession of the property and recovering the loan amount due as per the provisions of the SARFAESI Act. The 2nd to 4th respondents, on the other hand, have stated that the writ petitioner has forcibly occupied the premises and there is no shared household per se in property bearing Door No.22-53/1. These are all seriously disputed questions of fact which cannot be decided in this writ petition.

7) A reading of the counter affidavit of the 1st respondent also shows that the marriage between the petitioner and the 3rd respondent has run into difficulties. A divorce petition was filed in FCOP No.1248 of 2017 and decree of divorce was granted. In the said judgment the residential address of the present writ petitioner is Door No.10-14-2/21,Akulavaristreet, Mallikarjunapeta, Vijayawada.It is apparent from the reading of the order that the respondent therein (present writ petitioner) has received the Court notice but did not contest the matter, she was set ex parte. She was to appear on 25.09.2018 in that Court, but she failed to do so.

8) A Habeas Corpus petition in W.P.No.41534 of 2017 was also filed in the Composite High Court by the husband-3rd respondent. Orders were passed in December, 2017 in this writ petition. It is stated that the present writ petitioner, who is the 8th respondent, took away the youngest child in November 2017 and living in Vijayawada (para-3). In para-5 the Hon’ble Court directed that the respondent No.8-writ petitioner shall stay at Hyderabad with younger child and the expenses for her stay etc., should be met by the writ petitioner. Some other rights were also granted.

9) The counter affidavit filed by the 2nd respondent in the present case shows that thereafter a house was taken in Yusufguda in Hyderabad. Because of the alleged misbehaviour of the writ petitioner the said house was vacated. Thereafter, another house was take at Venkagala Rao Nagar, Hyderabad. It is stated that the 1st petitioner ran away from the house. Thereafter, she went to the house, which is the subject matter of this dispute, at Gollapudi, Vijayawada, threatened the tenants, who immediately vacated the premises. Writ petitioner, according to the counter affidavit, thereafter occupied the said premises and is a ‘trespasser’. A copy of the rental agreement entered into by the tenants of the 2nd respondent pertaining to this property is also filed as a material document,whichshows that the lease was entered into for 11 months period from 23.05.2017 onwards. In view of these disputed issues, this Court has to conclude and agree with what is stated by the unofficial respondents that there is a serious issue about the “shared household” itself in this case. This Court concurs that in view of these facts there is a serious issue as to whether there is a shared household at all which would entitle the petitioner to raise an issue before this Court. Only if there is a “shared household” the petitioner can seek reliefs from a proper Court under Section 18 and / or Section 26. It is also clear that writ petitioner had an effective alternative remedy which was not invoked, where these facts should be established.

10) The other issues that also arises for consideration is whether the petitioner is entitled to protection under the provisions of the D.V.C. Act and in this Writ court. Section 17 (2) of the DVC Act, on which the petitioner relies, states that the 1stpetitioner is entitled to orders of protection and can only be evicted in accordance with the procedure established by law. In this case the 1strespondent-bank has approached the Magistrate Court in accordance with the provisions of Section 14 of SARFAESI Act only. It has not resorted to forcible eviction. In the opinion of this Court “due procedure clause” stipulated under Section 17 is satisfied, because the bank is involving statutory provisions only and has sought for an appointment of Advocate Commissioner to take possession in line with Section 14 of the said Act.

11) An argument was also advanced that the provisions of D.V.C Act would prevail over the SARFAESI Act and the RDDB Act, 1993. Learned counsel argued that the woman subjected to domestic violence and residing in a shared household should be protected and also that the later Act (DVC Act, 2005) would prevail over the earlier Acts. An argument was also advanced on “harmonious construction” of the statutes.

12) In the opinion of this Court Sections 34 of the RDDB and 35 of the SARFAESI Act, which are as follows, have to be considered.

“Section 34 of the RDDB Act:

Act to have over-riding effect.—(1) Save as provided under subsection (2), the provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act.

(2) The provisions of this Act or the rules made thereunder shall be in addition to, and not in derogation of, the Industrial Finance Corporation Act, 1948 (15 of 1948), the State Financial Corporations Act, 1951 (63 of 1951), the Unit Trust of India Act, 1963 (52 of 1963), the Industrial Reconstruction Bank of India Act, 1984 (62 of 1984) 2 [, the Sick Industrial Companies (Special Provisions) Act, 1985 (1 of 1986) and the Small Industries Development Bank of India Act, 1989 (39 of 1989)].”

Section 35 of SARFAESI Act:

The provisions of this Act to override other laws.— The provisions of this Act shall have effect, notwithstanding anything inconsistent therewith contained in any other law for the time being in force or any instrument having effect by virtue of any such law.”

13) On the other hand Section 36 of the DVC Act is as follows:

“Section 36: Act not in derogation of any other law: The provisions of this Act shall be in addition to, and not in derogation of the provisions of any other law, for the time being in force.”

14) The provisions of these two Acts, which are specifically enacted for facilitating the Banks and financial institutions to recover their loans are clear and categorical. In this Court’s opinion they will prevail over other statutes as the DVC Act is merely supplemental to other laws. Therefore, this Court is of the firm opinion that the provisions of these two Acts would prevail over the provisions of the Domestic Violence Act, particularly with relation to the procedure for recovery of loan including taking over possession through Court. These are special statutes were prevail over the general statute pertaining to domestic violence. Apart from all of the above, there is a serious issue in this case about “shared household and the sharing of household itself”. The Writ Petitioner also has a remedy and a fora to prove these “disputed” facts. This Court also notices that in B.P. Achala Anand v. S. Appi Reddy (2005) 3 SCC 313 (dealing with an eviction suit against the husband / divorced wife etc.,) with reference to a matrimonial home it was held that even if the woman has a right to resist the suit; she can only have the rights / defences the tenant – husband had and nothing more. Therefore, the argument that provisions of Act 43 of 2005 (DVC Act) prevail over the RDDB or SARFAESI Act is not correct in this Court’s opinion. The loan is admitted; the default is clear and by granting a relief as prayed for this court would give a greater relief to the wife than was available to the defaulter himself.

15) The Supreme Court of India on more than one occasion has raised serious concern about the writ petitions being filed against measures initiated under the provisions of SARFAESI Act. Time and again the Hon’ble Supreme Court of India has stated that the writ petition is not an effective remedy at all and that a person affected by the measures taken under the SARFAESI Act, can approach the DRT for relief. On this ground also this Court opines that the petitioner is not entitled to any relief. If she is an affected party she has a remedy.

16) Therefore, for all the above mentioned reasons, the writ petition is dismissed. There shall be no order as to costs.

17) Consequently, Miscellaneous Applications pending, if any, shall also stand dismissed.