Hameed M.K. v. IndusInd Bank Limited

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN THURSDAY, THE 20TH DAY OF FEBRUARY 2014/1ST PHALGUNA, 1935 OP(Crl.).No. 33 of 2014 (Q) ---------------------------- AGAINST THE ORDER IN CMP 6512/2013 of CHIEF JUDICIAL MAGISTRATE, ERNAKULAM DATED 23-01-2014 PETITIONER: -----------HAMEED M.K. S/O.M.H.KHADER, MATTAPPILLIL HOUSE, KOOVALLOOR P.O. KOTHAMANGALAM, ERNAKULAM DISTRICT REPRESENTED BY P/A. HOLDER K.M.ALIYAR , S/O.MOHAMMED KIZHEKKEVEETTIL, KOOVALLOOR KARA, POTHANIKKAD KOTHAMANGALAM, ERNAKULAM DISTRICT. BY ADV. SRI.N.K.MOHANLAL RESPONDENT: ---------- INDUS IND BANK LIMITED N.H.BY PASS, NORTH END, KOCHI-682 031 REPRESENTED BY AUTHORISED OFFICER. THIS OP (CRIMINAL) HAVING BEEN FINALLY HEARD ON 20-02-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP(Crl.).No. 33 of 2014 (Q) ---------------------------- ## APPENDIX PETITIONER'S EXHIBITS ----------------------EXHIBIT P1. : A TRUE COPY OF THE POWER OF ATTORNEY DATED 8/1/2010. EXHIBIT P2 : A TRUE COPY OF NOTICE ISSUED U/S.13(2) OF THE SARFAESI ACT 2002 DATED 29/7/2013. EXHIBIT P3 : A TRUE COPY OF OBJECTION NOTICE TO INDUS BANK BY SUHARA DATED 20/8/2013. EXHIBIT P4 : A TRUE COPY OF REPLY ISSUED FROM INDUS BANK TO SUHARA DATED 9/9/2013. EXHIBIT P5 : A TRUE COPY OF THE ORDER OF HONOURABLE CJM DATED 23/1/2014. EXHIBIT P6 : A TRUE COPY OF PETITION FOR RE-DELIVERY OF POSSESSION OF EARTH EXCAVATOR. EXHIBIT P7 : A TRUE COPY OF SEC.14 PETITION FILED UNDER SARFAESI ACT 2002. EXHIBIT P8 : A TRUE COPY OF COUNTER AFFIDAVIT PRODUCED BEFORE THE HONOURABLE CJM. EXHIBIT P9 : A TRUE COPY OF NOTICE ISSUED TO BANK, ADVOCATE COMMISSIONER AND SUB-INSPECTOR OF POLICE DATED 31/1/2014. RESPONDENT'S EXHIBITS : NIL ---------------------- //TRUE COPY// P.A. TO JUDGE K. RAMAKRISHNAN, J. -----------------------------------------------------------------O.P.(Crl.).No.33 of 2014 --------------------------------------------------------------------Dated this the 20[th] day of February, 2014 ## J U D G M E N T The petitioner filed this petition, seeking a direction in Crl.M.P.No.6512/2013 pending before the Chief Judicial Magistrate Court, Ernakulam, under Article 227 of the Constitution of India. 2. It is alleged in the petition that, the petitioner availed a loan from the respondent Bank in the year 2007, for purchasing an excavator and he committed default. As per the order of the Hon'ble High Court of Chennai, the vehicle was seized and later released to him on bank guarantee. Arbitration proceedings were initiated and award was passed for the recovery of the amount. They have challenged the arbitration in O.P.358/2011 before the High Court, Chennai, that is pending adjudication. In the O.P.(Crl.).No.33 of 2014 2 meantime, proceedings under ‘SARFAESI’ Act was initiated and possession of the vehicle was taken, after obtaining an order from the Chief Judicial Magistrate Court,Chennai, and the petitioner moved for the release of the vehicle before the Chief Judicial Magistrate Court. Now the petition is posted to 21.02.2104 for hearing. Since the petitioner is having doubt regarding the power of the Chief Judicial Magistrate in this regard and so this petition is filed, seeking the following reliefs: “i). issue appropriate order to set aside Ext.P5 order of Hon'ble Chief Judicial Magistrte Ernakulam and Ext.P7 petition under Section 14 of SARFAESI Act or alternatively direct the Hon'ble Chief Judicial Magistrate Court, Ernakulam to dispose of Ext.P6 petition for redelivery of vehicle within a short time as stipulated by this Hon'ble Court. ii) issue appropriate order directing the 1[st] respondent to pay compensation of Rs.17,00,000/- as on the date of filing of this writ petition for illegal seizure and possessing of vehicle and consequential mental agony sustained to petitioner and iii) issue such other appropriate writ or order which deemed just and necessary on the facts and O.P.(Crl.).No.33 of 2014 3 circumstances of the case.” 3. Respondent appeared through counsel. Since both the petitioner and respondents were represented by counsel, this court felt that this can be disposed of after hearing both sides. 4. The counsel for the petitioner submitted that, there is irregularity in initiating proceedings and in violation of the provisions of the Act, the proceedings have been initiated and possession of the vehicle has been taken by the orders of the court. So this court has got jurisdiction to entertain the application and order re-delivery of the vehicle. 5. On the other hand, the learned counsel for the respondent bank submitted that, since possession has already been taken by invoking Section 14 of the Act, the O.P.(Crl.).No.33 of 2014 **==> picture [7 x 9] intentionally omitted <==** remedy of the petitioner is to file appeal under Section 17 of the ‘SARFAESI’ Act. 6. It is an admitted fact that, the petitioner availed loan by creating security interest in respect of the vehicle purchased and immovable properties in favour of the bank and committed default. It is also admitted by the petitioner in the petition itself that, arbitration proceedings have been initiated and an award was passed and that is being questioned before the High Court of Chennai. Though the counsel for the petitioner submitted that there is a stay, no such document has been produced before this court to substantiate this aspect. It is also admitted by the counsel for the petitioner that, after taking the petition on file, filed by the bank under Section 14 of the ‘SARFAESI’ Act, the magistrate appointed an Advocate Commissioner to take delivery of the vehicle and hand over the same to the 5 O.P.(Crl.).No.33 of 2014 bank and accordingly the commissioner had taken possession of the vehicle and handed over the same to the bank. So, now the bank has already got the security interest, by taking delivery of the vehicle from the commissioner. Once the possession of the vehicle has been taken by initiating proceedings under Section 14 of the Act, then the remedy of the petitioner is to file an appeal against that order under Section 17 of the Act. In the decision reported in **Standard Chartered Bank v. Noble Kumar [(2013(4) KLT 531 (SC)],** the Hon’ble Supreme Court has held that, once possession of the secured interest has been obtained through court under Section 14 of the Act, the remedy of the borrower is to file an appeal under Section 17 of the Act or seek possession of the vehicle invoking Section 13(8) of the Act, by paying the amount due. So in view of the above dictum, the application for re-delivery of the 6 O.P.(Crl.).No.33 of 2014 vehicle is not maintainable. Considering the fact that the possession of the vehicle has already been handed over to the bank, I feel that, the prayer in the petition cannot be granted by invoking the power under Section 227 of the Constitution of India, as efficacious alternate remedy has been provided under the statute itself. So, the petition is dismissed, without prejudice to the right of the petitioner to move the appropriate forum for appropriate relief. Sd/K. Ramakrishnan, Judge // True Copy // P.A. to Judge ss