Karnataka High Court
M/S H Dasappa And Sons Pvt Ltd vs M/S Edelweiss Asset Reconstruction Co ... on 28 March, 2018
Author: Aravind Kumar
Bench: Aravind Kumar
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 28TH DAY OF MARCH, 2018
BEFORE
THE HON'BLE MR. JUSTICE ARAVIND KUMAR
CRIMINAL PETITION NO.6455 OF 2011
BETWEEN:
M/S. H. DASAPPA & SONS PVT. LTD.
A COMPANY INCORPORATED
UNDER THE COMPANIES ACT,
BREWERS AND DISTILLERS,
NO.47, II PHASE, PEENYA INDUSTRIAL AREA,
BANGALORE,
REPRESENTED BY ITS MANAGING DIRECTOR,
MR. D. RAMACHANDRAPPA,
S/O. LATE H. DASAPPA,
AGED ABOUT 70 YEARS.
... PETITIONER
(BY SRI G.K. BHAT, ADV.)
AND:
1. M/S. EDELWEISS ASSET RECONSTRUCTION CO. LTD.
A COMPANY INCORPORATED
UNDER THE COMPANIES ACT,
EDELWEISS HOUSE,
OFF. CST ROAD, KALINA,
MUMBAI,
REPRESENTED BY ITS AUTHORISED OFFICER,
MR. GAURAV BHATNAGAR.
2. LAKSHMI VILAS BANK LTD.
B.V.K. IYENGAR ROAD,
BANGALORE.
REPRESENTED BY ITS BRANCH MANAGER.
... RESPONDENTS
(BY SRI V.R. KULKARNI, ADV., FOR R-1; &
R-2 SERVED & UNREPRESENTED)
2
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF
CR.P.C. PRAYING TO QUASH THE ORDER DATED 30-9-2011
PASSED BY THE VII ADDITIONAL CHIEF METROPOLITAN
MAGISTRATE, BENGALURU CITY, IN CRL.MIS. NO.4367 OF 2011.
THIS CRIMINAL PETITION IS COMING ON FOR ADMISSION,
THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
Perused the records. Order dated 3-9-2011 passed by the VII Additional Chief Metropolitan Magistrate, Bengaluru City, in Crl.Misc. No.4367 of 2011 has been called in question.
2. Respondent No.1 herein, as assignee of the charge- holder, initiated proceedings under Section 14 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002, (for short, referred to as 'SARFAESI Act') before the jurisdictional Magistrate seeking for an order to take possession of the property mortgaged for satisfaction of the dues. Learned Magistrate on being satisfied with the claim made and in exercise of power vested under Section 14 of SARFAESI Act, by impugned order allowed the petition and permitted 3 the petitioner to take possession of the schedule property towards satisfaction of the creditors due and Police Inspector of jurisdictional Police Station was directed to give necessary protection to the petitioner, while taking possession of the mortgaged property. This order is impugned in the present petition contending inter-alia same is passed without application of mind and it is contrary to mandate of Section 14 of SARFAESI Act and it is not indicated in the order that assets sought to be handed over to applicant was and is belonging to the petitioner or it is in the custody of petitioner.
3. Perusal of Section 14 of SARFAESI Act would disclose that a secured creditor or its asignee would be empowered to take possession of any secured assets and for the purpose of taking possession or control of any such secured assets and it is required to make a request to the Chief Metropolitan Magistrate or the District Magistrate within whose jurisdiction such secured asset is situated or found to take possession of such asset of an order being 4 passed thereof. Under Sub-Section(2) of 14 of SARFAESI Act, the Chief Metropolitan Magistrate is empowered to take or cause to be taken such steps, as may be, in his opinion to secure the compliance of provisions of Sub- Section(1) and pass such orders. In the light of the said power vested in the SARFAESI Act, learned Magistrate, by impugned order has allowed the petition which does not suffer from any infirmity whatsoever.
4. Though learned counsel for the petitioner has contended that Section 14(2) of the Karnataka Excise Act restricts that no person should have in his possession any quantity of intoxicant in excess of the limit prescribed under Sub-Section(1) and Rule 21 of the Karnataka Excise (possession, transport, import and export of intoxicants) Rules and said Rule specifies carrying of the liquor should not be beyond the permissible limit and on account of petitioner possessing in excess of the quantity prescribed under Rules and thereof possessing such liquor cannot be obtained is a contention which requires 5 to be rejected outrightly. There is no such fetter under SARFAESI Act and the SARFAESI Act being a special enactment prevails over Karnataka Excise Act. Even otherwise, if possession of such excess stored liquor is taken by the secured creditor, it can make necessary application before authorities to comply with the provisions of Karnataka Excise Act and Rules and as such, said contention cannot be adjudicated in this petition. No grounds. Hence, criminal petition is hereby dismissed.
I.A. No.2 of 2011 does not survive for consideration. Accordingly, it is rejected.
SD/-
JUDGE kvk