John Paul, Nadaranjan and Radhakrishnan v. Central Bank of India and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V** **THURSDAY, THE 21ST DAY OF MARCH 2019 / 30TH PHALGUNA, 1940** **Crl.MC.No. 1880 of 2019** **Crl.R.P NO.65/2014 of ADDITIONAL SESSIONS COURT-IV, PALAKKAD** **Crl.M.P NO.3336/2014 IN Crl.M.P.NO.2032/2014 OF THE CHIEF JUDICIAL MAGISTRATE COURT, PALAKKAD** ## **PETITIONERS/REVISIONS PETITIONERS:** - **1 JOHN PAUL, AGED 66 YEARS, S/O.NAJANAMANIKKAM, 12/382(3), KERALA STREET, KOPPAM P.O., PALAKKAD DISTRICT, PIN-678001.** - **2 NADARAJAN, AGED 60 YEARS, S/O.SUBRAMANIAN, 12/382, KERALA STREET, KOPPAM P.O., PALAKKAD DISTRICT, PIN-678001.** - **3 RADHAKRISHNAN, AGED 58 YEARS, S/O.SUBRAMANIAN, 12/382, KERALA STREET, KOPPAM P.O., PALAKKAD DISTRICT, PIN-678001.** **BY ADVS. SRI.DINESH MATHEW J.MURICKEN SRI.VINOD.S.PILLAI** ## **RESPONDENTS/RESPONDENTS:** - **1 CENTRAL BANK OF INDIA, REP. BY ITS AUTHORIZED OFFICER, THE CHIEF MANAGER, CENTRAL BANK OF INDIA, REGIONAL OFFICE, 1ST FLOOR, METRO PLACE, NEAR TOWN RAILWAY STATION COCHIN, KOCHI682018, ERNAKULAM DISTRICT.** - **2 ALEXANDER, AGED 42 YEARS,** **S/O.FRANCIS, 12/382, AGNUS BHAVANAM, KERALA STREET, KOPPAM P.O., PALAKKAD DISTRICT, PIN-678001.** **3 LATHA ALEXANDER, AGED 38 YEARS, W/O.ALEXANDER, 12/382, AGNUS BHAVANAM, KERALA STREET, KOPPAM P.O., PALAKKAD DISTRICT, PIN-678001.** **Crl.MC.No. 1880 of 2019** **2** **4 SOBHA SELVRAJ, AGED 46 YEARS, W/O.SELVARAJ, 10/580, PUTHOORAN VEEDU, KERALA STREET, KOPPAM P.O., PALAKKAD DISTRICT, PIN-678001.** **SRI. AJITH MURALI, PUBLIC PROSECUTOR** R1 BY ADV.SRI.ANEESH K.M., SC FOR CENTRAL BANK OF INDIA **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 21.03.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **Crl.MC.No. 1880 of 2019** **3** ## **ORDER** Proceedings under the Secularization and Reconstruction of the Financial Assets Enforcement of Security Interest Act, 2002 (hereinafter referred to as 'the SARFAESI Act') was initiated against respondents 2 to 4 by the Central Bank of India, Palakkad Branch through its authorized officer. In the course of proceedings, a Commissioner Advocate was appointed under Section 14 of the SARFAESI Act to assist the secured creditor to take possession of the secured assets. The petitioners herein, claiming themselves to the tenants of respondent Nos.2 to 4, approached the Chief Judicial Magistrate and filed CRL.M.P.No.3336 of 2014 contending that they cannot be evicted except in accordance with due process of law. 2. In the application filed by the petitioners, the Bank was arrayed as the petitioner and the debtors were arrayed as the respondents. They were ordered by the learned Magistrate to make necessary corrections. They did not cure the defects as ordered. The learned counsel appearing for the petitioners was not prepared to advance his arguments either. The learned Magistrate by order dated 18.9.2014 dismissed the application for default. 3. The petitioners preferred Crl.R.P.No.65 of 2014 before the **Crl.MC.No. 1880 of 2019** **4** Court of Session, Palakkad. The learned Sessions Judge evaluated the facts and circumstances and held that no patent illegality, irregularity or impropriety was committed by the learned Magistrate while passing the impugned order. The revision petition was accordingly dismissed on 30.6.2018. 4. Challenging the above order, the instant petition is preferred under Section 482 of the Cr.P.C. 5. The learned counsel appearing for the petitioners contended that the Apex Court in **Harshad Govardhan Sondagar and others v. Internl. Assets Reconstrn. Co. Ltd. and others** [2014 (6) SCC 1] has held in unequivocal terms that in cases where the lawful possession of the secured asset is not with the borrower but with the lessee under a valid lease, the secured creditor cannot take over possession of the secured asset until the lawful possession of the lessee gets determined. According to the learned counsel, the learned Magistrate would have no power under Section 14 of the SARFAESI Act to take possession of the secured asset from a lessee under a valid lease. The learned counsel would also refer to the decision of the Apex Court in **Vishal N. Kalsaria v. Bank of India** [2016 (6) SCC 762] and it is contended that one tenancy is created, a tenant can be **Crl.MC.No. 1880 of 2019** **5** evicted only after following the due process of law. He would also refer to a decision of a learned Single Judge of this Court in **Roshan Narayanan C.S. v. Authorised Officer, Central Bank of India and** **Another** [2017 (4) KLT 1172] and it is contended that the reference to a measure in Section 13(4) in its application to clause (a) thereof, must be taken as including a reference to any step in the effectuation of the measure, commencing with the issuance of any notice under Rule 8(2) and including the stages of approaching the Magistrate, obtaining an order from him, issuance of a notice by an Advocate Commissioner, and culminating with the taking of actual physical possession of the secured asset. All these actions would give rise to a cause of action to approach the Debt Recovery Tribunal through an application under Section 17 of the SARFAESI Act. In the case on hand, though Annexure-A6 notice was issued by the Commissioner Advocate, the possession of the secured asset has not been taken up till date. Section 4A has been inserted to Section 17 of the SARFAESI Act by amendment dated 16.8.2016 which came into force with effect from 1.9.2016 and hence, the petitioner has every right to raise a claim before the Debt Recovery Tribunal. However, the learned Sessions Judge without taking note of the pronouncement of this **Crl.MC.No. 1880 of 2019** **6** Court in **Roshan Narayanan** has held that the amendment will have no application in pending proceedings. Finally, the learned counsel would refer to the decision of the Apex Court in **CIT v. Alom Extrusions Ltd.** [2010 (1) SCC 489] and it is contended that where an amendment to an existing law is curative in nature, it would perforce be retrospective. He would also refer to the judgment of the Apex Court in **Vijay v. State of Maharashtra** [(2006) 6 SCC 289] and it is assiduously urged that general presumption of statutes and amendment thereto being prospective in nature is overturned where the amendment to an existing statute is curative or clarificatory in nature. According to the learned counsel, such amendments are necessarily retrospective in nature. 6. The learned counsel appearing for the respondent Bank, on the other hand, would contend that a petition under Section 482 of the Cr.P.C. cannot be maintained in view of the Bench decision of this Court in **Radhakrishnan Nair V.N. v State of Kerala** [2008(4) KHC 989]. He would further contend that the order passed by the learned Sessions Judge confirming the order passed by the learned Magistrate was on 30.6.2018. The instant petition under Section 482 of the Cr.P.C. was filed after about 9 months. No explanation is offered for **Crl.MC.No. 1880 of 2019** **7** the long delay in approaching this Court. He would further contend that Section 14(3) of the SARFAESI Act states that no act of the learned Magistrate or any officer authorised by the Magistrate done in pursuance of Section 14 is liable to be called in any other court or before any authority and the said provision would also stand in the way in entertaining this petition. He would point out that the case of the petitioners is not that they are lessees but on the other hand, their assertion is that the property was mortgaged and a sum of Rs.1,50,000/- was obtained from them. 7. I have considered the submissions advanced and have perused the materials made available. 8. It is evident from the records that the petitioners had filed Crl.M.P.No.3336 of 2014 before the learned Magistrate contending that they are tenants and they cannot be evicted except in accordance with the due process of law. This was in response to notice dated 10.8.2014 issued by the Bank to the borrowers. Admittedly, the physical possession of the property has not been taken over till date. In view of the amendment to Section 14, the learned Magistrate exercising jurisdiction under Section 14 of the SARFAESI Act will have to issue notice to the tenants. It is settled that Section 14 of the Act **Crl.MC.No. 1880 of 2019** **8** does not exclude the compliance of the principles of natural justice. This aspect of the matter was considered by the Apex Court in **Harshad Govardhan Sondagar** (supra) and in paragraph No. 21 of the judgment, it was laid down that the Magistrate will have to give a notice and give an opportunity of hearing to the person claiming to be the lessee as well as to the secured creditor consistent with the principles of natural justice and then take a decision. In the case on hand, no such notice has been issued. If any such notice is issued, necessarily the petitioners may have an opportunity to approach the Debt Recovery Tribunal under Section 17(4A) of the SARFAESI Act. In that view of the matter, I find no reason to entertain this petition. The same will stand dismissed. **Sd/-** ## **RAJA VIJAYARAGHAVAN V.,** **JUDGE** DSV/23.3.19 **Crl.MC.No. 1880 of 2019** **9** ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** - **ANNEXURE A1 TRUE COPY OF THE AGREEMENT EXECUTED BETWEEN THE 1ST PETITIONER AND 3RD RESPONDENT DATED 15.12.2011.** - **ANNEXURE A2 TRUE COPY OF THE AGREEMENT EXECUTED BETWEEN THE 2ND PETITIONER AND 3RD RESPONDENT DATED 25.08.2012.** - **ANNEXURE A3 TRUE COPY OF THE AGREEMENT EXECUTED BETWEEN THE 3RD PETITIONER AND 3RD RESPONDENT DATED 24.08.2013.** - **ANNEXURE A4 TRUE COPY OF THE POSSESSION NOTICE ISSUED BY THE 1ST RESPONDENT DATED 22.02.2014.** - **ANNEXURE A5 TRUE COPY OF THE FIRST INFORMATION REPORT IN CRIME NO.468/2014 OF TOWN NORTH POLICE STATION, PALAKKAD DATED 25.03.2014.** - **ANNEXURE A6 TRUE COPY OF THE NOTICE MEMO ISSUED BY THE ADVOCATE COMMISSIONER DATED 10.08.2014.** - **ANNEXURE A7 TRUE COPY OF THE ORDER IN CRL.M.P.NO.3336/2014 IN CRL.M.P.NO.2031/2014 PASSED BY THE CHIEF JUDICIAL MAGISTRATE COURT, PALAKKAD DATED 18.09.2014.** - **ANNEXURE A8 TRUE COPY OF THE ORDER IN CRL.R.P.NO.65/2014 PASSED BY THE ADDITIONAL SESSIONS COURT, PALAKKAD-IV DATED 30.06.2018.** **RESPONDENT'S/S EXHIBITS:** **NIL** **//TRUE COPY// P.A.TO JUDGE**