Madras High Court, Sec 14, :M.Vijayalakshmi vs Authorised Officer Of SBI

M.Vijayalakshmi vs Authorised Officer   Of SBI on 28 October, 2013 


IN THE HIGH COURT OF JUDICATURE AT MADRAS

Dated 28.10.2013
Coram
The Hon'ble Mr.Justice R.SUDHAKAR
and
The Hon'ble Mrs.Justice PUSHPA SATHYANARAYANA
Writ Petition No.28904 of 2013
and
M.P.No.1 of 2013
 


M.Vijayalakshmi.                               ... Petitioner

vs.

1.Authorised Officer,
   State bank of India,
   Palacode Branch, 
   Palacode 636 808,
   Dharmapuri District.

2.The Chief judicial Magistrate,
   Dharmapuri,
   Dharmapuri District.    ... Respondents 


 Writ Petition is filed under Article 226 of the Constitution of India praying to issue a writ of Certiorarified Mandamus, calling for the records pertaining to the impugned proceedings in Crl.M.P.No.391/13 dated 19.8.2013 passed by the second respondent and quash the same and consequently direct the respondent not to take possession or auction of the petitioner property in S.No.74 vacant house site, measuring an extent of 6110 sq. ft. situated at Kottumaranahalli Village, Palacode Taluk, Dharmapuri District.



 For petitioner    :  Mr.D.Nandagopal     

 For respondents :  Mr.P.Audikesavalu 
       for R1

      R2 Court
   
-----
 

O R D E R

(Order of the Court was made by R.SUDHAKAR,J.) This Writ Petition is filed praying to issue a writ of Certiorarified Mandamus, calling for the records pertaining to the impugned proceedings in Crl.M.P.No.391/13 dated 19.8.2013 passed by the second respondent and quash the same and consequently direct the first respondent not to take possession or auction of the petitioner property in S.No.74 vacant house site, measuring an extent of 6110 square feet situated at Kottumaranahalli Village, Palacode Taluk, Dharmapuri District.

2. Heard Mr.D.Nandagopal, learned counsel appearing for the petitioner and Mr.P.Audikesavalu, learned standing counsel appearing for the first respondent.

3. The writ petition has been filed challenging the proceeding/ order dated 19.8.2013 passed by the Chief Judicial Magistrate, Dharmapuri, in terms of Section 14 of Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (in short SARFAESI Act ) in Crl.M.P.No.391 of 2013.

4. The petitioner has borrowed certain amount from M/s.State Bank of India, the first respondent herein. Consequent to declaring the loan as non performing assets (in short NPA), notice under Section 13(2) of the SARFAESI Act has been issued by the first respondent on 20.8.2011. Possession notice in terms of Section 13(4) of the SARFAESI Act has been issued on 15.2.2012 by the first respondent. The petitioner submitted a representation/explanation to the first respondent on 21.12.2012. Not satisfied with the explanation/representation, the first respondent proceeded to take appropriate action under Section 14 of the SARFAESI Act for possession of the property. Therefore, the first respondent approached the Chief Judicial Magistrate, Dharmapuri, the second respondent herein under Section 14 of the SARFAESI Act. Section 14 of the SARFAESI Act reads as follows:

14.Chief Metropolitan Magistrate or District magistrate to assist secured creditor in taking possession of secured asset. (1)Where the possession of any secured asset is required to be taken by the secured creditor or if any of the secured asset is required to be sold or transferred by the secured creditor under the provisions of this Act, the secured creditor may, for the purpose of taking possession or control of any such secured asset, request, in writing, the Chief Metropolitan Magistrate or the District Magistrate within whose jurisdiction any such secured asset or other documents relating thereto may be situated or found, to take possession thereof, and the Chief Metropolitan Magistrate or, as the case may be, the District Magistrate shall, on such request being made to him -

(a) take possession or such asset and documents relating thereto; and

(b) forward such asset and documents to be secured creditor.

(2)For the purpose of securing compliance with the provisions of sub-section (1), the Chief Metropolitan Magistrate or the District Magistrate may take or cause to be taken such steps and use, or cause to be used, such force, as may, in his opinion, be necessary.

(3)No act of the Chief Metropolitan Magistrate or the District Magistrate done in pursuance of this section shall be called in question in any Court or before any authority.

5. The order passed by the Chief Judicial Magistrate, Dharmapuri is challenged, primarily on the ground that the Chief Judicial Magistrate is not competent to take the petition and pass appropriate orders in terms of Section 14 of the SARFAESI Act, placing reliance on the Full Bench Decision of this Court in the case of K.Arockiyaraj vs. - The Chief Judicial Magistrate, Srivilliputhur reported in 2013(5) CTC) 225. The Full Bench held in 35 as follows:-

35.From the perusal of the above judgments as well as the statutory provisions contained in Section 14 of the SARFAESI Act, 2002, in its independent existence, we are of the firm view that Section 14 does not contemplate the Secured Creditors to approach the Chief Judicial Magistrates for assistance to secure their assets and the Secured Creditors can approach the District Magistrate, and not the Chief Judicial Magistrate.

6. Mr.Audikesavalu, learned standing counsel appearing for the first respondent submits that the Supreme Court in the case of Standard Chartered Bank vs. - V.Noble Kumar and others rendered in Criminal Appeal No.1218 of 2013 [Arising out of Special Leave Petition (Criminal) No.2038 of 2011] and Criminal Appeal No.1217 of 2013 [Arising out of Special Leave Petition (Criminal) No.6560 of 2011] decided on 22.8.2013 had affirmed the possession order passed by the Chief Judicial Magistrate in terms of Section 14 of the SARFAESI Act and therefore, this court should not interfere with the proceedings of the Chief Judicial Magistrate, Dharmapuri.

7. In the case before the Supreme Court the issue as to whether the Chief Judicial Magistrate was empowered to act in terms of Section 14 of the SARFAESI Act was not raised and adjudicated. On the contrary the Full Bench of our High Court clearly come to the conclusion as above. Therefore, we have no hesitation to hold that the proceedings of the Chief Judicial Magistrate in exercise of power under Section 14 of the SARFAESI Act is not in consonance with the law and the decision of the Full Bench of this Court. Therefore, the impugned proceedings is set aside giving liberty to the first respondent to approach the District Magistrate concerned as held by the Full Bench of this Court.

8. This Writ Petition is ordered as above. No costs. Consequently, connected miscellaneous petition is closed.

                                                                   (R.S.,J.)     (P.S.N.,J.)
                                                                            28.10.2013  


ts  

R.SUDHAKAR,J.           
AND                    
PUSHPA SATHYANARAYANA

Justice Sanjay Kishan Kaul was on Saturday sworn-in as the Chief Justice of the Madras High Court.

Madras highcourt advocates association July 26 ,2014, 4mts back

Justice Sanjay Kishan Kaul was on Saturday sworn-in as the Chief Justice of the Madras High Court. Earlier, he was the Chief Justice of the Punjab and Haryana High Court.

The Governor, K. Rosaiah, administered the oath of office at a brief ceremony at the Durbar Hall of the Raj Bhavan.

Tamil Nadu Chief Minister Jayalalithaa, her cabinet colleagues, Judges of the High Court, Advocate-General, A.L. Somayaji, Additional Advocates-General, and members of the Bar, were among those who attended the swearing-in.

Earlier, the Chief Secretary, Mohan Verghese Chunkath, read out the Presidential Notification on the appointment of the Chief Justice.

Mr. Justice Kaul (55) will be the 27 Chief Justice of the Madras High Court since Independence. At present, Justice Satish K. Agnihotri is the Acting Chief Justice of the High Court. Justice R.K. Agrawal was the last regular Chief Justice, who was later elevated to the Supreme Court.

The new Chief Justice was born on December 26, 1958. After schooling in Modern School, New Delhi, he graduated in Economics (Hons.) from St. Stephen’s College. He obtained LL.B from the Campus Law Centre, Delhi University in 1982. He enrolled himself as an advocate in July 1982 and practised in the Delhi High Court. He was designated a Senior Advocate in December 1999. He was appointed as an Additional Judge of the Delhi High Court in May 2001 and made permanent in May 2003. He was elevated as the Acting Chief Justice in September 2012. He became Chief Justice of the Punjab and Haryana High Court on June 1 last year.

“Writs can’t be issued to High Court Judges”

The Hindu 19 July 14

Judges of the High Court are constitutional functionaries and not government servants. Hence, no writs can be issued to them, according to the Registrar-General of the Madras High Court.

The official was responding to a public interest litigation petition by the Prisoners’ Rights Forum seeking a direction to the High Court to constitute a Special Bench for deciding Habeas Corpus Petitions (HCP) challenging the preventive detention under the ‘Goondas Act’.

The forum, represented by its director, P. Pugalenthi, had submitted that the attack on prisoners inside the Central Prison, Puzhal here, on March 24 this year was to demand the early disposal of their petitions against their detention, pending before the High Court. Almost all detenus had filed petitions challenging the preventive detention. The number of petitions increased day by day. The court found it difficult to dispose of all cases in time. Hence, a Special Bench be formed to dispose of the cases without delay.

In a counter affidavit, the Registrar-General, P. Kalaiyarasan, said the right to have a speedy justice was available to prisoners under the Article 21 of the Constitution. But that right could not be enforced against the higher judiciary in view of the Constitutional limitations. 

It was the exclusive prerogative of the Chief Justice or the Acting Chief Justice to form Special Benches. High Court Judges were not ‘persons’ or ‘authorities’ or ‘government’ against whom writs can be issued under the Article 226 of the Constitution. 

Therefore, an action to enforce fundamental rights under the Articles 14 and 21 could not be sustained against the judiciary.

The Registrar-General said there was no necessity to constitute a Special Bench to deal with HCPs. There were nearly 1632 HCPs pending before the court as on May 31 this year.

 Of the total number, 1579 challenged detention under the Goondas Act. Even in the normal course of hearing, the Division Bench disposed of HCPs commensurate to the cases filed everyday. Thereby the pendency had been reduced drastically. 

This had been achieved in the absence of any special bench, the court official added.

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Judges are constitutional functionaries and not government servants: HC Registrar-General

Says it is the prerogative of the Chief Justice or the Acting Chief Justice to form Special Benches

Police can’t take photographs of accused, Madras high court says

Madras HC judges said that the source of police power to take photographs
 of an accused flows from Section 5 of the Identification of Prisoners Act, 1920.

CHENNAI: Police cannot take photographs of undertrial prisoners and accused without permission from the magistrate concerned, the Madras high court has said. 
"Police have no authority to do it on their own," a division bench comprising Justice S Rajeswaran and Justice PN Prakash said while dismissing the appeal filed by Lieutenant Colonel (retired) K Ramaraj against his conviction and sentence in the July 3, 2011 Dilson murder case. 

The judges asked: "Can the police be allowed to take photographs of the accused in police station without magisterial sanction? If we concede that power, what will be the plight of women accused? Can the police take the accused to the scene of crime or anywhere else and take photographs of him? If the photographs get leaked to the Press, will it not affect the evidentiary value of identification during the test identification parade?" 

The judges slammed the police practice of taking the accused to the scene of crime and making them "re-enact" the offence to prepare observation mahazars. "It is not a healthy practice to draw such observation mahazars and take videograph of accused while he is enacting the drama. It is not an admissible piece of evidence," they said. 

The judges discussed the photograph issue when they were shown two photographs - one showing Ramaraj at the time of his arrest on July 9, 2011, and the other showing Ramaraj when his murder weapon, a rifle, was recovered from Cooum river. "We find the accused (Ramaraj) touching the rifle and giving a pose along with policemen. What is the relevance of these photographs? Absolutely irrelevant," observed the judges. 

Delving deeper into the issue, which concerns privacy of an individual as well as the danger it poses to the evidentiary value during trial, the judges said the source of police power to take photographs of an accused flows from Section 5 of the Identification of Prisoners Act, 1920. 

An accused could be photographed only as per specific orders from the jurisdictional magistrate who would specify the time, place and measurement of such photographs, the judges said. 

However, in order to avoid impersonation, the judges suggested the investigating agencies must take photographs of accused in serious cases by invoking Section 5 of the Act, that too after completion of the identification parade. "This will ensure that the state has record of persons, and the mischief of impersonation can also be controlled," they said.

New norms for designating senior advocates in Madras High Court

R Sivaraman: The Hindu :28 Oct 2013

An advocate should have completed 15 years and should have argued successfully for landmark judgements

Aimed at providing greater transparency, the Madras High Court comes out with new norms on conferring the designation of senior advocate. According to the norms, an advocate should have completed 15 years of professional experience and landmark judgements should have been delivered in cases taken up by such a person.

Pointing out that the declared gross income from the profession should not be less than Rs. 7 lakh annually for the past three years, the norms spell out that an advocate should furnish at least fifteen judgments where he/she has contributed to the growth of law, in the preceding three years.

Welcoming the norms, R. Muthukumaraswamy, president of the Madras Bar Association (MBA) toldThe Hindu that “In those days, a senior advocate would recommend to Chief Justice the case of a junior advocate who has experience of 10 years for granting senior advocate’s designation and the matter would be placed before the full court for approval. Now, for first time, the Madras High Court has now made it public the norms.”

Explaining the procedure to be adopted while designation, the notification said “a Select Committee comprising of 10 judges of the High Court, preferably representing different facets of law, which would identify such of those advocates, who by their ability, conduct, standing at the bar or special knowledge or experience in law and distinction are eligible to be designated as Senior Advocates in terms of Section 16(2) of the Advocates Act, 1961”

“It appears that the gross income is too low. Today, it is nothing for a person who has fifteen years experience. The message clearly should be brought out that there shall not be application by candidate or recommendation letters by two seniors as practised now,” viewed senior advocate R. Krishnamoorthy.

The notification further said advocate, for being designated as senior advocate, on being invited by the High Court, should furnish the information in a prescribed format.

After verifying the credentials of the advocate, the Select Committee will forward the list to the Chief Justice. The selection list of names will thereafter be placed for approval before the High Court for designation as senior advocates.

Withdrawal

The notification made it clear that the High Court, by simple majority, will withdraw the designation of a senior advocate in case he/she committed professional misconduct or shown intemperate behaviour in court or has been found invariably negligent in professional duties.

Protesting police action, lawyers to skip courts on 11th

• 
  
  
  Advocates of the Egmore Court Complex staging a protest against the police in the city on Monday | p Jawahar

By Express News Service - CHENNAI

11th June 2013 08:36 AM

Members of the Madras High Court Advocates Association have decided to boycott courts, tribunals and other fora in Chennai on Tuesday also, this time to register their protest against the attack on their colleagues by the MKB Nagar police on June 9.

A resolution to this effect was adopted by the association executive committee, chaired by G Mohanakrishnan, here on Monday.

Originally, the advocates boycotted the courts on Monday in protest against DGP K Ramanujam’s alleged behaviour when the advocates tried to meet him at his office on June 6.

Even though the boycott was almost total in the subordinate courts, it was not so in the High Court.  Four to five courts, including  the first bench headed by Acting Chief Justice RK Agrawal, functioned as usual.

In other courts, judges sat in their respective court halls for some time and returned to their chambers later. Government advocates worked. While some advocates appeared without their gowns, many affected litigants appeared party in person.

They represented their cases in Tamil as well.

Social worker A Narayanan of Valsaravakkam filed writ petition challenging location of TASMAC shops and target fixure for the sales. She argued in person before the first bench comprising Acting Chief Justice RK Agrawal and Justice M Sathyanarayanan. The bench, while ordering notice on one petition, passed an interim order on the other. 

Meanwhile, the first bench ordered two weeks notice on the writ petitions from the TN Advocates Association (TNAA) and the TN Bar Council, praying for a direction to the Chief Secretary and the Home Secretary to take action against DGP Ramanujam for his alleged behaviour against the lawyers.

Their interim prayer was to place Ramanujam under suspension.

Keywords: Madras High Court, advocates protest, Egmore Bar Association, Tamil Nadu Advocates’ Association