V.S. Sunitha v. The Federal Bank Ltd. and others

IN THE HIGH COURT OF KERALA AT ERNAKULAM ## PRESENT ## THE HONOURABLE MRS. JUSTICE ANNIE JOHN WEDNESDAY,THE 10TH DAY OF OCTOBER 2018 / 18TH ASWINA, 1940 ## Crl.MC.No. 6396 of 2013 AGAINST THE ORDER DATED 16.04.2013 IN CMP 771/2013 of CHIEF JUDICIAL MAGISTRATE COURT, KOTTAYAM ## PETITIONER/ACCUSED: V.S.SUNITHA W/O.T.C.SANTHILAL, THARAYIL HOUSE, K.S.MANGALAM P.O., VAIKOM, KOTTAYAM, PIN-686 608. BY ADV. SMT.SMITHA GEORGE ## RESPONDENTS/COMPLAINANT: 1 THE FEDERAL BANK LTD., REPRESENTED BY ITS AUTHORIZED OFFICER AND CHIEF MANAGER, SAMC, KOTTAYAM-686 608. 2 THE MANAGER, FEDERAL BANK LTD., BROADWAY BRANCH, ERNAKULAM, VAIKOM, KOTTAYAM, PIN-686 608. 3 STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA682 031. BY ADVS. SRI.A.ANTONY SMT.LEELAMMA ANTONY ## SMT. KK SHEEBA, PUBLIC PROSECUTOR THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 04.09.2018, THE COURT ON 10.10.2018 PASSED THE FOLLOWING: Crl.M.C. No. 6396/2013 -2- ## **ORDER** The petitioner is the respondent in C.M.P. No. 771 of 2013 on the file of the Chief Judicial Magistrate Court, Kottayam in a proceedings under the SARFAESI Act. 2. The brief facts of the case are as follows: The petitioner availed a loan of Rs.1,75,000/- from the second respondent Bank on 31.07.2009. An extent of 8.5 cents of property comprised in Survey No. 55/21B of Kulasekharamangalam Village was given as mortgage for the aforesaid loan. The loan was taken for a term of 5 years with monthly instalment of Rs.4,300/- and was sanctioned while he was working as an Accountant at Triton Technologies Pvt. Ltd., Palarivattom. He has paid the monthly instalments upto December, 2012. An amount of Rs.1,70,416/- was paid till 07.10.2013 and the balance amount due was Rs.1,05,537/-. Since the petitioner has lost her job, there was failure to pay the instalment from January, 2013 to April, 2013. The first respondent has filed Annexure A1 under Section 14(1) of the SARFAESI Act to take possession of the secured assets before the Chief Judicial Magistrate Court, Kottayam. The Chief Judicial Magistrate, as per Annexure A2 Crl.M.C. No. 6396/2013 -3- order, appointed Ms. Anu Stephen as an Advocate Commissioner. 3. The learned counsel for the petitioner contended that the Court has no power to appoint an Advocate Commissioner to take possession of the property. He has also contended that the order passed under Section 14 of the Act appointing an Advocate Commissioner is illegal, in view of the amendment made to Section 14(1) (a). The relevant provision reads thus: ## " 14. **Chief Metropolitan Magistrate or District Magistrate to assist secured creditor in taking possession of secured asset** .- (1) Where the possession of any secured assets is required to be taken by the secured creditor or if any of the secured assets 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 assets, 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 of such asset and documents relating thereto; and (b) forward such asset and documents to the secured creditor. He has further contended that in sub-Section (3) after the word "the District Magistrate, the words "any Officer authorised by the Chief Metropolitan Magistrate or the District Magistrate" has to be inserted. Going by the above provisions, it is clear that an Advocate cannot be Crl.M.C. No. 6396/2013 -4- appointed as he is not an Officer subordinate to the court. So, the order passed by the court below does not have any legal sanctity in view of the amendment. 4. When the matter was taken up for consideration, the learned counsel for the respondent Bank has submitted that the petitioner has deposited the entire amount and therefore, there is no necessity to quash the proceedings. 5. I have heard the learned counsel on both sides and have gone through the records. The provisions of the SARFAESI Act were invoked by the Federal Bank, Aluva through the Kottayam Office. The respondent Bank has granted a loan of Rs.1,75,000/- on 31.07.2009 through the Ernakulam Broadway Branch. As a collateral security for the above said facilities, the second respondent created security interest in favour of the Bank by creating equitable mortgage in respect of the immovable properties. The respondent Bank reserved its right to proceed against the properties other than an extent of 3.44 Ares of land along with all improvements in Sy. No. 55/21B of KUlasekharamangalam Village, Vaikom Taluk, Kottayam District. Since the petitioner has defaulted repayment of the loan amount, the respondent Bank was constrained to initiate recovery proceedings under the provisions of the SARFAESI Act. A statutory notice under Crl.M.C. No. 6396/2013 -5- Section 13(2) of the Act was issued to the petitioner to settle the matter. But, no payment was made, nor any reply sent by the petitioner. Hence the recovery proceedings were initiated against the petitioner. 6. The learned counsel for the respondent Bank has argued that the respondent Bank is entitled to get possession of the property as per Section 14 of the Act with the help of the Court only. The relevant provisions empowering the Court is envisaged under Section 14 of the SARAESI Act. It is further contended that the petitioner has purposefully delaying in taking possession of the schedule property by obstructing the respondent Bank from taking actual and physical possession of the schedule property. Accordingly, the respondent Bank has approached the Chief Judicial Magistrate, Kottayam to take necessary steps by invoking Section 14 of the Act. Accordingly, the Chief Judicial Magistrate, as per order dated 27.11.2013, appointed an Advocate Commissioner. As per Section 14(1A) of the SARFAESI Act inserted by Act 1 of 2013 with effect from 15.01.2013 vide S.O 171(E), dated 15.01.2013, the District Magistrate or Chief Metropolitan Magistrate may authorise any officer subordinate to him (i) to take possession of such assets and documents relating thereto and (ii) to forward such assets and documents to the secured creditor. Crl.M.C. No. 6396/2013 -6- 7. It is also held in _**The Federal Bank Ltd., Ernakulam v. A.V. Punnus**_ [AIR 2014 KERALA 7], that an Advocate Commissioner is certainly an officer subordinate to the Court and he is competent to take possession of secured assets. It is also held in _**Muhammed Ashraf v. Union of India**_ [AIR 2009 Ker 14] that Section 14 empowers the Magistrate to give assistance to the secured creditor to get possession of secured asset and the Magistrate can appoint the Commissioner and can even ask for police help. It is also held that 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 secured assets, it is not necessary that the District Magistrate or the Chief Judicial Magistrate should go personally and take possession. Section 14(2) of the Secularization Act provides that the Magistrate can order even police assistance and use all necessary powers in taking possession of the secured assets. He can also appoint a Commissioner for the identification of the secured assets and if there is any resistence while taking possession of the same, he can ask for police help and take effective steps to have the possession of the secured assets taken over. Crl.M.C. No. 6396/2013 -7- ## **8.** In _**Sakiri Vasu v. State of Uttar Pradesh and others**_ [AIR 2008 SC 907], the Hon'ble Supreme Court has held thus: "It is well settled that when a power is given to 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 statute, 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." 9. Therefore, on the strength of the above decision, I have no hesitation to hold that Section 14(1)(a) of the Act empowers the Magistrate 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 same and if there is any resistance, he can even seek police assistance. The argument advanced by the learned counsel for the petitioner is not maintainable and the petitioner has not substantiated any ground to invoke the extra ordinary jurisdiction under Section 482 of Cr.P.C. Therefore, this Crl.M.C fails and the same is liable to be dismissed. In the result, this Crl.M.C. is dismissed. Sd/- **ANNIE JOHN, JUDGE.** _Rv_ Crl.M.C. No. 6396/2013 -8-