DARLY SHAJAN Vs. SHAJAN THOMAS

JUDGEMENT

(1.) This writ petition is filed seeking for a direction to the respondents 4 and 5 not to dispossess the petitioners from the building situated in R.S. No.95/7, Block No.12 of Angamali Village. This writ petition is filed by the petitioner inter alia contending that she being the wife of the 1st respondent and sister in law of respondents 2 and 3 have filed an application before the Judicial Magistrate of First Class, Angamali under the Protection of Women from Domestic Violence Act, 2005. As per order dated 07.08.2015 in CMP No. 1060/15 in MC No.45/15 which is produced as Ext. P2, the learned Magistrate had restrained the respondents from ousting the petitioner from the shared house.

(2.) Petitioner submits that she had been residing in the aforesaid building in RS No.95/7, Block No.12 of Angamali Village since 1991. Now that steps are being taken by respondents 4 and 5 under the SARFAESI Act, 2002, this writ petition is filed apprehending that she will be dispossessed from the property.

(3.) Learned Senior Counsel appearing for the petitioner submits on the basis of Sec. 35 of the SARFAESI Act that the Domestic Violence Act is in addition to and not in derogation with the SARFAESI Act. In so far as special right has been conferred to persons like the petitioner under the Domestic Violence Act, no steps can be taken by the secured creditor under the SARFAESI Act to evict the petitioner unless orders are modified by the Court granting right of residence. Reference is also made to the judgment of the Apex Court in Vishal N. Kalsaria Vs. Bank of India [2016 (1) KLT 623 (SC)] wherein the Apex Court had occasion to consider the scope and effect of Sec. 35 of the SARFAESI Act. After referring to Section 35 of the SARFAESI Act it is held in paragraph 30 as under: