K.C. Sabu v. Chief Judicial Magistrate, Kottayam, The South Indian Bank Ltd., Rajeev K.N., Sandhya K.V., Vrinda Rajesh

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE THE CHIEF JUSTICE MR. A.J.DESAI ``` ## **`&`** ``` THE HONOURABLE MR. JUSTICE C.PRATHEEP KUMAR ``` ``` THURSDAY, THE 21[ST] DAY OF MARCH 2024 / 1ST CHAITHRA, 1946 ``` ``` WA NO. 320 OF 2024 ``` ``` AGAINST THE JUDGMENT DATED 23.02.2024 IN WP(C) NO.22355 OF 2023 OF HIGH COURT OF KERALA ``` ## **`APPELLANT(S)/PETITIONER:`** ``` K.C. SABU AGED 60 YEARS S/O. LATE K. CHELLAPPAN KATHU NIVAS, THIRUNAKKARA KARA, KOTTAYAM P.O., KOTTAYAM VILLAGE, KOTTAYAM TALUK,, PIN - 686001 ``` ``` BY ADVS. LIJI.J.VADAKEDOM REXY ELIZABETH THOMAS TOM E. JACOB ATHUL V. VADAKKEDOM ``` ## **`RESPONDENT(S)/RESPONDENTS:`** - **`1 CHIEF JUDICIAL MAGISTRATE, KOTTAYAM COLLECTORATE P.O, KOTTAYAM DISTRICT - 686002, PIN - 686002`** - **`2 THE SOUTH INDIAN BANK LTD., REPRESENTED BY ITS CHIEF MANAGER & AUTHORIZED OFFICER, REGIONAL OFFICE, K.K. ROAD, KOTTAYAM, PIN - 686002`** - **`3 RAJEEV K.N S/O. K.S. NARAYANAN NAIR, KULANGARA HOUSE, THIRUNAKKARA, KOTTAYAM, PIN - 686001`** - **`4 SANDHYA K.V W/O. RAJEEV K.N, KULANGARA HOUSE, THIRUNAKKARA, KOTTAYAM, PIN - 686001`** - **`5 VRINDA RAJESH W/O. LATE RAJESH, VAISHNAVAM, KUDAMALOOR, KOTTAYAM, PIN - 686017 BY ADV P.A.AUGUSTINE AREEKATTEL D.D.Tex world, market road , Ernakulam SR. ADV. K.K.CHANDRAN PILLAI FOR R2 SR. GP SRI. K.P.HARISH`** ``` WA NO. 320 OF 2024 ``` ``` -2- ``` ``` THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 21.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` WA NO. 320 OF 2024 ``` ``` -3- ``` ## **JUDGMENT** ## **A.J.DESAI, CJ.** By way of the present appeal filed under Section 5 of the Kerala High Court Act, 1958, the original petitioner has challenged the judgment dated 23.02.2024, passed by the learned Single Judge in the captioned W.P.(C) No.22355/2023, by which, the learned Single Judge refused to quash and set aside the order dated 03.03.2022, passed by the Chief Judicial Magistrate, Kottayam, in the proceedings initiated by the respondent Bank under the provisions of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (hereinafter, for short, the SARFAESI Act), by which, the Magistrate has passed the following order: “Learned counsel for petitioner filed application to appointed Taluk Surveyor to identify, measure out and demarcate the property. Petition allowed. Pay bata of Rs.4000/- directly filed memo. Intimation to Advocate Commissioner. For commission report on 02.04.2022.” ``` WA NO. 320 OF 2024 ``` ``` -4- ``` 2. The case put forth by the appellant before the learned Single Judge is that the property which was sold way back in the year 2011 by a registered sale deed (Ext.P1) is a sham one and therefore, the appellant had filed appropriate suit challenging the validity of the sale deed. The respondent purchaser had availed a loan by mortgaging the said property and did not repay the loan amount and therefore, proceedings have been initiated by the Bank by taking possession of the mortgaged property. It is the case of the appellant / petitioner that there are disputes with regard to measurement and boundaries of the property in question and therefore, the learned Magistrate ought not have passed the order dated 03.03.2022 to identify, measure and demarcate the property. He would submit that the Magistrate has no power under Section 14 of the SARFAESI Act to pass such order. Measurement can only be done under the Kerala Survey and Boundaries Rules, 1964, and therefore, the learned Single Judge ought to have quashed the said order. In support of his ``` WA NO. 320 OF 2024 ``` ``` -5- ``` submission, he has relied upon the decision of the Hon’ble Apex Court in _**Authorised Officer, Indian Bank v. D. Visalakshi and Another 2019 (20) SCC 47**_ . By taking us through paragraph No.33 of the said judgment, he would submit that the Magistrate is trying to adjudicate the interest and right of the parties with regard to the property in question. He, therefore, would submit that the appeal be allowed and the judgment of the learned Single Jude and Ext.P7 order passed by the Chief Judicial Magistrate be quashed and set aside. Paragraph No.33 of the judgment reads as under: “Suffice to observe that an inquiry conducted by the stated authority under S.14 of the 2002 Act, is a sui generis inquiry. In that, majorly it is an administrative or executive function regarding verification of the affidavit and the relied upon documents filed by the parties. That inquiry is required to be concluded within the stipulated time frame. While undertaking such an inquiry, as is observed by this Court, the authority must display judicious approach, in considering the relevant factual position asserted by the parties. The pre- ``` WA NO. 320 OF 2024 ``` ## **`-6-`** supposes that is is a quasi – judicial inquiry though, a non – judicial process. The inquiry does not result in adjudication of inter se rights of the parties in respect of the subject property or of the fact that the transaction is a fraudulent one or otherwise.” 3. On the other hand, the learned Counsel appearing for the Bank would submit that the sale deed came to be executed by the appellant way back on 24.05.2011 and was registered with the authority. The property described in Clause 17 of the sale deed includes the entire property which was mortgaged with the bank by the purchaser and had availed loan. The suit filed by the petitioner is already dismissed for default and at present, no suit proceedings are pending except an application for revival of the suit. He would further submit that the bank intends to take possession of the property which was mortgaged with the bank and therefore, the appellant filed an application for identifying the property with the assistance of the Taluk Surveyor and accordingly, the Magistrate has passed appropriate order which has not been ``` WA NO. 320 OF 2024 ``` ``` -7- ``` interfered by the learned Single Judge. He would submit that a Division Bench of this Court in _**Muhammed Ashraf and Another v. Union of India and Others 2008 (3) KHC**_ _**935**_ , has examined this issue and after discussing the power under Section 14 of the SARFAESI Act, has held that the Judicial Magistrate can pass such orders of taking possession by providing assistance to secure the assets and can appoint a Commission. Having gone through the judgment, particularly, paragraph No.6, we are of the opinion that the said judgment is applicable in the present case. Paragraph No.6 reads as under: 6. With regard to the argument that a Commissioner cannot be appointed by the Chief Judicial Magistrate as part of giving assistance in taking possession of the secured assets while rendering assistance to the secured creditor to get possession of the secured assets, we are of the view that it is not necessary that the District Magistrate or the Chief Judicial Magistrate should go personally and take possession. Section 14(2) of the Securitisation Act provides that the Magistrate can order even police assistance and use all necessary powers in taking ``` WA NO. 320 OF 2024 ``` ``` -8- ``` possession of the secured assets. In Sakiri Vasu v. State of Uttar Pradesh and others ((2008) 2 SCC 409, 2008(1) ILR Kerala 813) the Hon'ble Supreme Court held as follows: "18. It is well settled that when a power is given to a authority to do something it includes such incidental or implied powers which would ensure the proper doing of that thing. In other words, when any power is expressly granted by the stature, there is impliedly included in the grant, even without special mention, every power and every control the denial of which would render the grant itself ineffective. Thus where an Act confers jurisdiction it impliedly also grants the power of doing all such acts or employ such means as are essentially necessary for its execution. 19. The reason for the rule (doctrine of implied power) is quite apparent. Many matters of minor details are omitted from legislation. As Crawford observes in his Statutory Construction (3rd Edn., p.267): "..... If these details could not be inserted by implication, the drafting of legislation would be an interminable process and the legislative intent would likely be defeated by a most insignificant omission." ``` WA NO. 320 OF 2024 ``` ``` -9- ``` 20. In ascertaining a necessary implication, the court simply determines the legislative will and makes it effective. What is necessarily implied is as much part of the statute as it it were specifically written therein. 21. An express grant of statutory powers carries with it by necessary implication the authority to use all reasonable means to make such grant effective. Thus in ITO v. M.K.Mohammad Kunhi (AIR 1969 SC 430) this Court held that the Income Tax Appellate Tribunal has implied powers to grant stay, although no such power has been expressly granted to it by the Income Tax Act. 22. Similar examples where this Court has affirmed the doctrine of implied powers are Union of India v. Paras Laminates (P) Ltd., ((1990) 4 SCC 453), RBI v. Peerless General Finance and Investment Co. Ltd. ((1996) 1 SCC 642 at p.656), CEO & Vice-Chairman, Gujarat Maritime Board v. Haji Daud Haji Harun Abu, ((1996) 11 SCC 23), J.K.Synthetics Ltd. v. CCE ((1996) 6 SCC 92), State of Karnataka v. Vishwabharathi House Building Coop. Society ((2003) 2 SCC ``` WA NO. 320 OF 2024 ``` An overall reading of the section shows that the power of the Magistrate is to render assistance to the secured creditor in taking possession of the secured assets. He can also appoint a Commissioner for identification of the secured assets and taking possession of the secured assets etc. and if there is any resistance, ask for police assistance and take any effective steps to have possession of the secured assets taken over. In the above circumstances, we dismiss the writ appeal, the writ petitions and the Crl.R.P. 4. We heard the learned Advocates appearing for respective parties. 5. In our considered opinion, the order passed by the learned Magistrate itself makes it very clear that an Advocate Commissioner was appointed to identify, measure and demarcate the property. It is needless to say that the Advocate Commissioner shall identify, measure and demarcate the property in the presence of Taluk Surveyor. However, it is also made clear that the Taluk Surveyor and Advocate Commissioner shall inform the appellant the date ``` WA NO. 320 OF 2024 ``` ``` -11- ``` and time of carrying out the measurement, the report of which is supposed to be submitted before the learned Magistrate. Hence, the appeal is dismissed with the observations made herein above. ``` Sd/- A.J.DESAI CHIEF JUSTICE Sd/- C.PRATHEEP KUMAR JUDGE ``` uu 21.03.2024 ``` WA NO. 320 OF 2024 ``` ``` -12- ``` ## **`APPENDIX OF WA 320/2024`** ``` PETITIONER ANNEXURES Annexure AITHE COPY OF THE SALE DEED NO. 2354/2005 DATED 24.6.2005 OF THE SRO KOTTAYAM ALONG WITH THE TRANSLATED COPY OF THE SAME Annexure AIITHE COPY OF THE RELEVANT EXTRACT OF THE FIR IN CRIME NO. 1439/2014 DATED 23.8.2014 OF KOTTAYAM WEST POLICE STATION Annexure AIIITHE COPY OF CMP NO. 4960/2015 BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE COURT-III, KOTTAYAM ```