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Judgment
N. Nagaresh, J
The petitioner, a Non-Banking Financial Institution, has approached this Court seeking to direct the 1st respondent to afford adequate protection for restoring possession of the secured asset by removing all persons from the property including respondents 2 and 3 and their men including family members.
The petitioner states that the petitioner is a Non-Banking Financial Institution engaged in the disbursal of the loans. Pursuant to the orders of the Chief Judicial Magistrate's Court, Kollam, the petitioner came into possession of the secured asset. To the surprise of the petitioner, when the Manager of the petitioner-Company visited the property, the residential building was found broke open by the 3rd respondent. Though the petitioner submitted police complaint, the police has not taken any action.
The petitioner states that the petitioner came in to possession of the residential building through legal means and through intervention of the Court. Therefore, respondents 2 and 3 cannot forcibly take possession of the property from the petitioner.
Government Pleader submitted that there is a dispute between the petitioner and the 3rd respondent. The 3rd respondent came into possession of the property. If there is any law and order problem and the same is brought to the notice of the 1st respondent, the issue will be looked into.
I have perused the pleadings. A Division Bench of this Court in W.P.(C) No.7741/2018, in similar circumstances, 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 has 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.”
In view of the above, the petitioner is entitled to relief. The writ petition is therefore disposed of directing the 1st respondent to provide necessary police assistance to the petitioner for restoring possession of the secured asset by removing any person from the said property including the 3rd respondent and his family members.