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