At, High Court of Kerala
By, THE HONOURABLE MR. JUSTICE N. NAGARESH
For the Petitioner: M.V. Thamban, R. Reji, Thara Thamban, Arun Bose, Deepa Sreenivasan, B. Bipin, Advocates. For the Respondents: R2 & R3, B. Satheez Chandran, M.G. Sussila, R4, Sri.S.Dileep (Kallar), Jeemon P. Abraham, Asp Kurup, Advocatyes, R1, Deepa Narayanan, Government Pleader.
1. The petitioner seeks to direct respondents 2 and 3 to remove the movable machinery kept in the premises owned by the petitioner in Industrial Development Plot, Poovanthuruthu. The petitioner has also sought other consequential and incidental reliefs.
2. The factory building lying in Re-Survey No.473/1 and 473/2 of Panachikadu Village, Industrial Development Plot, Poovanthuruthu originally belonged to the 4th respondent. The Andhra Bank to which amounts were allegedly due from the 4th respondent, proceeded against the property. The petitioner purchased the said plot in auction proceedings conducted by the Bank.
3. The petitioner states that the Bank had agreed to remove the movable machinery situated within the premises within three months. In spite of repeated requests, the Andhra Bank did not move all movables. The said Bank is now merged with Union Bank of India.
4. The General Manager, District Industrial Centre issued Ext.P7 proceedings granting permission to the petitioner for manufacture of rubber products, with a condition that the petitioner shall commence functioning of the industrial unit within six months. The petitioner has executed Ext.P8 Agreement with the Government also. Failure of the Bank authorities, who are respondents 2 and 3, to remove the movable machinery has disabled the petitioner from commencing his industrial unit. Respondents 2 and 3 therefore are compellable to remove the movables forthwith and compensate the petitioner paying ?4,00,000/- per month from 12.05.2020, contended the petitioner.
5. Respondents 2 and 3 contended that they have removed some of the machinery taking another building on lease to house those machinery. After some machinery were removed, the 4th respondent caused physical obstruction to the removal of the remaining machinery. They cannot remove the remaining machinery without police help in view of the physical obstruction caused by the 4th respondent.
6. Advocate S. Dileep (Kallar) representing the 4th respondent submitted that SA No.83/2020 filed by the 4th respondent is pending before the Debt Recovery Tribunal, Ernakulam. The 4th respondent has challenged the auction proceedings in the DRT. Immovable properties including Diesel Generator and other heavy and sensitive machines valued more than ?18,00,000/- is now going to be auctioned by the Bank for a meagre amount of ?4,50,000/-. Since a genuine dispute with regard to the machinery are pending before the DRT, the petitioner cannot insist for removal of machinery from the premises in question.
7. Heard Advocate R. Reji, Counsel for the petitioner, Advocate Satheez Chandran, Standing Counsel for respondents 2 and 3, Advocate S. Dileep (Kallar), counsel for the 4th respondent and the learned Government Pleader Advocate Deepa Narayanan appearing for the 1st respondent.
8. The industrial plot has been auctioned by the Bank authorities and the petitioner has purchased the said plot. No superior competent court has set aside the said sale so far. In the circumstances, the petitioner is entitled to get the movables belonging to the 4th respondent and attached by respondents 2 and 3 removed from his property. Any dispute between respondents 2 and 3 on the one hand and the 4th respondent on the other, cannot be a justification for keeping the machinery in the premises of the petitioner.
9. The existence of the said machinery in the property of the petitioner do really cause hindrance to the petitioner to commence his industrial unit, which has to be done in a time bound manner in view of the stipulations made by the 1st respondent. The 4th respondent does not have any right to obstruct the removal of machinery by the Bank, using physical force. Learned Standing Counsel for the Bank submits that SA No.83/2020 filed by the petitioner as well as OA No.250/2018 filed by respondents 2 and 3 are pending before the DRT. If that be so, there is no reason by the 4th respondent shall not prosecute his remedies in the Tribunal, instead of physically obstructing removal of the movables.
In the circumstances, the writ petition is allowed in part. Respondents 2 and 3 are directed to remove the machinery remaining in the premises purchased by the petitioner within a period of one week. Before removal of the machinery, respondents 2 and 3 shall cause an inventory of the machinery being removed pursuant to this judgment and file a copy of the inventory along with a memo before the Registrar General of the High Court of Kerala. Respondents 2 and 3 will be at liberty to appr
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oach the Station House Officer, Kottayam East Police Station in case of any physical obstruction by the 4th respondent or others. Respondents 2 and 3 shall handover the key of the premises after removal of the machinery, to the petitioner without any further delay. It is made clear that this Court has not adjudicated anything on the proprietary rights over the movables and respondents 2, 3 and 4 will be entitled to agitate all their claims over the movables before the appropriate forum, in accordance with law.