AMMINI PETER Vs. UNION OF INDIA

JUDGEMENT

(1.) Petitioner has approached this Court challenging Ext.P3, an order passed by the Chief Judicial Magistrate while considering an application submitted by the respondent Bank under Section 14 of the SARFAESI Act. By virtue of the above order, an Advocate Commissioner was appointed to take possession of the premises. Petitioner contends that she is the mother of 3rd respondent Aby Peter. She had filed an application before the Judicial First Class Magistrate Court, Kolenchery under the Protection of Women from Domestic Violence Act, 2005 (hereinafter referred to as the 2005 Act) and an interim order had been passed on 11/11/2015, which is as follows:

(2.) Petitioner submits that in so far as the 2005 Act is a special law to take care of rights of women, her right has to be given precedence before proceedings are taken by the respondent Bank under Section 14 of the SARFAESI Act. It is contended that the Bank is not entitled to take possession of the premises when an interim direction has been issued by the Magistrate under the 2005 Act. Learned counsel for the petitioner also relies upon the judgment of the learned Single Judge of this Court in Radha v. Deputy Tahsildar (2015 (1) KLT 423). That was a case in which a lady belonging to a Scheduled Caste has approached this Court challenging revenue recovery proceedings initiated by the revenue authorities for sales tax dues. It was found that the petitioner was a deserted wife and when an order is passed under the 2005 Act, the revenue authorities cannot recover the amount overlooking the said statutory right available to the petitioner. In paras 9 and 10 of the said judgment, it is held as under:

(3.) On the other hand, learned counsel appearing on behalf of the 2nd respondent submits that the petitioner cannot have any claim at all in respect of the property in question. On facts, it is stated that the title of the mortgaged property in which the petitioner stakes a claim is a settlement deed executed by the petitioner's husband in favour of the 3rd respondent, who is the borrower, without reserving any right at all. In such circumstances, the 3rd respondent is the only person entitled to have right over the property and when he has mortgaged the property in favour of the respondent Bank, respondent Bank is entitled to take such steps in accordance with law. It is also argued that the judgment in Radha (supra) can have no application to the factual issues made available in the case and does not consider an instance where SARFAESI proceedings had been taken under the SARFAESI Act, 2002.