Kerala High Court
Salim S.H vs Axis Bank Ltd on 30 August, 2016
Author: V Raja Vijayaraghavan
Bench: V Raja Vijayaraghavan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
TUESDAY, THE 30TH DAY OF AUGUST 2016/8TH BHADRA, 1938
OP(Crl.).No. 476 of 2016 (Q)
-----------------------------
MC 417/2015 of CHIEF JUDICIAL MAGISTRATE COURT,
THIRUVANANTHAPURAM
----------
PETITIONER(S):
-------------
SALIM S.H.,AGED 51 YEARS,
S/O. SHAHUL HAMEED, AP X/515 A,
CAPITIO BUILDING SIMI PLAZA,
VETTU ROAD, KANIYAPURAM,
THIRUVANANDAPURAM-695301.
BY ADVS.SRI.R.S.KALKURA
SRI.M.S.KALESH
SRI.HARISH GOPINATH
SMT.P.ANJANA
SRI.P.M.UNNI NAMBOODIRI
RESPONDENT(S):
--------------
1. AXIS BANK LTD.,
REPRESENTED BY ITS BRANCH MANAGER
(RETAIL ASSET CENTRE) NIHAL COMPLEX,
IIND FLOOR, NEAR KARAMANA BRIDGE,
KARAMANA THIRUVANANDAPURAM - 695002.
2. AUTHORISED OFFICER, AXIS BANK LTD.,
NIHAL COMPLEX, IIND FLOOR,
NEAR KARAMANA BRIDGE, KARAMANA,
THIRUVANANDAPURAM - 695002.
R & R2 BY SRI.P.PAULOCHAN ANTONY
THIS OP (CRIMINAL) HAVING COME UP FOR ADMISSION
ON 30-08-2016, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
bp
OP(Crl.).No. 476 of 2016 (Q)
APPENDIX
PETITIONER'S EXHIBITS :
P1: COPY OF THE RECEIPT FOR PAYMENT DT 21/3/2015 FOR
RS.40,000/-
P2: COPY OF THE RECEIPT FOR PAYMENT DT 16/3/2015 FOR
RS.40,000/-.
P3: COPY OF THE RECEIPT FOR PAYMENT DT 12/3/2015 FOR
RS.50,000/-.
P4: COPY OF THE RECEIPT FOR PAYMENT DT 1.9.2914 FOR
RS. 1,75,000/-
P5: COPY OF THE RECEIPT FOR PAYMENT DT 30/1/2015 FOR
RS. 2,02,978/-.
P6: COPY OF LETTER DT 13/5/2015.
P7: COPY OF THE NOTICE DT 24/10/2014.
P8: COPY OF THAT POSSESSION NOTICE ISSUED BY THE
RESPONDENT BANK DT 24/1/2015.
P9: COPY OF THE PETITION FILED BY THE RESPONDENTS AS
MC 417 OF 2015 BEFORE THE CHIEF JUDICIAL MAGISTRATE
COURT, THIRUVANANDAPURAM ALONG WITH THE AFFIDAVIT.
P10: COPY OF THE JUDGMENT DT 16/9/2015 INWPC NO. 21543 OF
2015.
P11: COPY OF THE ORDER DT 4/1/2016 IN RP N. 1205 OF 2015.
RESPONDENT'S EXHIBITS : NIL.
//TRUE COPY//
P.A. TO JUDGE
bp
RAJA VIJAYARAGHAVAN.V., J
- - - - - - - - - - - - - - - - - - - -
O.P.(Crl). No. 476 of 2016
- - - - - - - - - - - - - - - -
Dated 30th August, 2016
- - - - - - - - - - - - - - - - - - - - - - - -
JUDGMENT
1.This petition is filed under Article 227 of the Constitution of India seeking following reliefs:
"i. Declare that Exhibit P13 proceedings is void ab initio for violation of the mandatory requirement under Section 14(1) (ii) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002.
ii. issue an order or direction setting aside Exhibit P12 and P13 grossly illegal and without jurisdiction."
2.Ext.P12 order was passed on an application filed by the 1st respondent herein under Section 14(1) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (hereinafter referred to as the SARFAESI Act). The learned Magistrate by Ext.P12 order appointed a Commissioner as prayed for to take possession of the secured asset.
O.P(Crl) No. 476 of 2016 -2-
3. The learned counsel appearing for the petitioner submits that the affidavit accompanying the application filed by the secured creditor should have been filed by the authorised officer and it ought to have contained all the details as contemplated in the various clauses to the proviso to section 14 (1) of the SARFAESI Act. It is pointed out that even the outstanding amount, let alone the other details, have not been mentioned in the affidavit and seeks for intervention.
4.Per contra, the learned counsel appearing for the 2nd respondent, relying on the decision of this Court in Shibu George V. State of Kerala 2016 KHC 2940 contends that the absence of particulars in the affidavit is no reason to reject the prayer of the respondents and it is always open for the learned Magistrate to afford an opportunity to file a fresh affidavit containing all details as mandated in the said provision.
O.P(Crl) No. 476 of 2016 -3-
5.I have gone through Exhibit P 9 and there cannot be any doubt that the said affidavit lacks material particulars.
6.The Apex Court in Standard Chartered Bank v. V. Noble Kumar and Others (2013 (9) SCC 620) had occasion to closely analyse the nine sub clauses of the proviso to section 14 (1) and it was observed that this provision stipulates that a secured creditor who is seeking the intervention of the Magistrate under S.14 was required to file an affidavit furnishing the information contemplated under various sub-clauses (i) to (ix) of the proviso. The Supreme Court further held that the affidavit containing the aforesaid information was necessary as it would obligate the Magistrate to pass suitable orders regarding taking and delivery of possession of the secured asset only after being satisfied with the contents of the affidavits. The Supreme Court further held that the satisfaction of the Magistrate under the second proviso to S.14(1) O.P(Crl) No. 476 of 2016 -4- necessarily requires the Magistrate to examine the factual correctness of the assertions made in such an affidavit and only after recording the satisfaction that the Magistrate could pass appropriate orders regarding taking of possession of the secured assets. I am therefore of the view that the petitioner is justified in asserting that the learned Magistrate had erred in proceeding on the basis of Exhibit P 9.
7.However, it is evident from the records that the petitioner had availed a loan of Rs 1,60,42,650/- on 1.5.2012 and had defaulted in paying the installments. It will not be in the interest of justice to reject the application filed by the respondents on technicalities. I am of the view that an opportunity is to be given to the respondent No 2 to file a fresh affidavit containing all the details as mandated in the provision.
O.P(Crl) No. 476 of 2016 -5-
8.Having regard to the facts and circumstances, Ext.P12 shall stand quashed. However the learned Magistrate shall permit the respondent No 2 to file a fresh affidavit. The parties shall appear before the learned Magistrate on 19.9.2016 and the learned Magistrate is directed to pass expeditious orders on the application.
This petition is disposed off.
Sd/-
RAJA VIJAYARAGHAVAN.V., JUDGE kp/-30.8.16