Madras High Court
E.Thiruvarangan vs The Branch Manager on 8 September, 2014
Author: S.Manikumar
Bench: S.Manikumar, V.S.Ravi
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 08.09.2014
CORAM
THE HONOURABLE MR.JUSTICE S.MANIKUMAR
and
THE HONOURABLE MR.JUSTICE V.S.RAVI
Writ Petition (MD) No.14771 of 2014
and
M.P.(MD).Nos.1 to 3 of 2014
E.Thiruvarangan .. Petitioner
Vs.
1.The Branch Manager,
ICICI Bank,
RAPG 10-A, Lakshmi Arcade
(2nd Floor), 11th Cross,
Thillai Nagar,
Trichy - 600 018.
2.The Asset Reconstruction Company
(India) Ltd., (hereinafter referred
to as Arcil), A Securitization
& Asset Reconstruction Company
Incorporated under the Companies
Act, 1956, having its registered
office at Times Tower,
9th Floor Kamala Mills Compound,
Senapati Bapat Marg,
Lower Parel (West) - 400 013. .. Respondents
Prayer
Writ Petition filed under Article 226 of the Constitution of
India, for issuance of a Writ of Certiorarified Mandamus, to call for the
records relating to the impugned order made by the learned Chief Judicial
Magistrate, Tiruchirapalli, in Crl.M.P.No.1656 of 2011, dated 16.05.2011 and
quash the same as illegal and consequently forbear the respondents from in
any way dispossessing the petitioner from his dwelling house in Survey
No.262/6, Plot No.27C, Alathur Village, Trichy.
!For Petitioner : Mr.Mahaboob Athiff,
for Ajmal Associates
^For respondents : Mr.A.Thiyagarajan,
for Mr.Pala Ramasamy
:ORDER
(Order of the Court was made by S.MANIMUMAR, J) Mr.Pala Ramasamy takes notice for the respondents.
2.Writ of Certiorarified Mandamus is sought for by the petitioner to quash the order of the learned Chief Judicial Magistrate, Tiruchirapalli in Crl.M.P.No.1656 of 2011, dated 16.05.2011 and consequently, for a direction to forbear the respondents, from in any way dispossessing the petitioner from his dwelling house in Survey No.262/6, Plot No.27C, Alathur Village, Trichy District.
3.Averments in support of the Writ Petition discloses that the petitioner had borrowed Rs.7,60,000/- as house loan from the first respondent Bank but, he had defaulted and hence, the first respondent has classified his loan amount, as non performing assets and issued a demand notice under Section 13(2) of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (hereinafter referred to as ?SARFAESI Act?). The said notice has been issued by the second respondent on behalf of the first respondent. Second respondent is a Securitization and Asset Reconstruction Company, incorporated under the Companies Act, 1956 and registered with the Reserve Bank of India under Section 3 of the SARFAESI Act, 2002.
4.According to the petitioner, loan account has been assigned by the first respondent to the second respondent and thus, a Demand Notice under Section 13(2) SARFAESI Act, 2002 came to be issued by the second respondent on 07.04.2010. Possession notice under Section 13(4) of the SARFAESI Act has also issued on 15.12.2010. Physical possession of the property has not been taken till today. While so, the second respondent is said to have filed an application under Section 14 of the SARFAESI Act, 2002 on the file of the Chief Judicial Magistrate, Trichy, on 22.02.2011, seeking Police assistance to take over the physical possession. Vide order dated 16.05.2011, in Crl.M.P.No.1656 of 2011, the learned Chief Judicial Magistrate, Tiruchirapalli, has passed an order appointing an Advocate Commissioner, to provide assistance to the 2nd respondent, in taking physical possession of the property. It is this order, which is challenged before this Court, under a Writ of Certiorarified Mandamus.
5.Reliance has been placed on the Hon'ble Full Bench decision of this Court in K.Arokiaraj Vs. The Chief Judicial Magistrate, Srivilliputhur (2013 (2) CWC 433), wherein, this Court has categorically held that the Chief Judicial Magistrate has no jurisdiction to pass an order under Section 14 of the SARFAESI Act, 2002 in respect of properties situated in non metropolitan areas and that the secured creditor has to approach only the District Magistrate.
6.When the matter came up for admission, Mr.A.Thiyagarajan, learned counsel representing Mr.Pala Ramasamy, for respondents 1 & 2 fairly admitted that the Hon'ble Full Bench decision of this Court would apply to the facts of this case. He has also submitted that in the light of the abovesaid settled position of law, possession would not be taken. Learned counsel for the respondents also submitted that the writ petition can be disposed of based on the decision stated supra. Submission of the learned counsel for the respondents is placed on record.
7.Perusal of the Hon'ble Full Bench decision discloses that a reference has been made for adjudicating the issue, as to whether the Chief Judicial Magistrate has jurisdiction to pass any orders under Section 14 of the SARFAESI Act, 2002, insofar as non metropolitan area is concerned. After considering a catena of decisions, at paragraph Nos.35 & 36, the Honourable Full Bench held as follows;
"35.From the perusal of the above judgements as well as statutory provisions contained in Section 14 of the SARFAESI Act, 2002, in its independent existence, we are of the firm view that Section 14 does not contemplate the Secured Creditors to approach the Chief Judicial Magistrates for assistance to secure their assets and the Secured Creditors can approach the Chief Metropolitan Magistrate in Metropolitan areas and in Non- Metropolitan areas, the Secured Creditors has to approach the District Magistrate, and not the Chief Judicial Magistrate.
36.In fine, the reference is answered by holding that the decision of the Division Bench of this Court reported in Indian Overseas Bank v. Sree Aravindh Steels Ltd., 2009 (1) CTC 341, does not laid down the correct proposition of law, and thus it is overruled. The Reference is answered accordingly. "
8.The decision, stated supra, is squarely applicable to the facts of this case. Having regard to the submission of the learned counsel for the respondents and the Hon'ble Full Bench decision, the impugned order, dated 16.05.2011, made in Crl.M.P.No.1656 of 2011, by the learned Chief Judicial Magistrate, Trichy, lacks jurisdiction. Hence, the same is set aside.
9.In the result, the Writ Petition is allowed. Consequently, connected miscellaneous petitions are closed. No costs.
[S.M.K.,J] [V.S.R.,J] 08.09.2014 Index : Yes Internet: Yes gcg To 1.The Asset Reconstruction Company (India) Ltd., (hereinafter referred to as Arcil), A Securitization & Asset Reconstruction Company Incorporated under the Companies Act, 1956, having its registered office at Times Tower, 9th Floor Kamala Mills Compound, Senapati Bapat Marg, Lower Parel (West) - 400 013. S.MANIKUMAR, J. and V.S.RAVI, J. gcg W.P(MD)No.14771 of 2014 08.09.2014