Kerala High Court
M/S.Sundaram Bnp Paribas Home Finance vs State Of Kerala on 1 December, 2008
Equivalent citations: AIR 2009 KERALA 85, 2009 (3) ALL LJ NOC 561, 2009 (3) AIR KAR R 482, 2009 A I H C (NOC) 536 (KER), (2009) 1 KER LT 56, (2009) 1 KER LJ 125, (2009) 3 BANKCAS 360, (2009) 2 ICC 545, (2009) 2 CIVLJ 657, (2009) 2 BANKCLR 193
Author: Thottathil B.Radhakrishnan
Bench: Thottathil B.Radhakrishnan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 34952 of 2008(J)
1. M/S.SUNDARAM BNP PARIBAS HOME FINANCE
... Petitioner
Vs
1. STATE OF KERALA, REP.BY CHIEF SECRETARY
... Respondent
2. DISTRICT COLLECTOR AND DISTRICT
3. THE SUPERINTENDENT OF POLICE,
4. THE TAHSILDAR, VYTHIRI TALUK VYTHIRI,
5. THE VILLAGE OFFICER, PADINJARETHARA
6. K.P.KRISHANANKUTTY, S/O.RAMANKUNJU
7. SMT.T.G.ANNAMMA W/O.K.R.KRISHNANKUTTY
For Petitioner :SRI.VARGHESE C.KURIAKOSE
For Respondent :SRI.BABU CHERUKARA
The Hon'ble MR. Justice THOTTATHIL B.RADHAKRISHNAN
Dated :01/12/2008
O R D E R
THOTTATHIL B.RADHAKRISHNAN, J.
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W.P.(C).No.34952 OF 2008
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Dated this the 1st day of December, 2008
JUDGMENT
"C.R."
Heard learned counsel for the petitioner and learned Government Pleader.
2. The petitioner filed an application before the District Magistrate under Section 14 of the Securatisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002, for short, the "Act", in November, 2006. On 15.1.2007, the Deputy Collector (RR), on behalf of the Collector, forwarded that petition, as per Ext.P5, to the Tahsildar, requiring him to extend such help as may be required in terms of Section
14. The petitioner's complaint is that no further action has followed.
3. Respondents 6 and 7, through their learned counsel, state that they are teachers and have not paid the amounts only because of certain financial difficulties and that they would pay it off shortly.
WPC.34952/08
Page numbers
4. Section 14 of the Act contains the provisions, by which, a secured creditor may invoke the police power of the State, to lawfully evict persons who continue in possession in spite of measure taken under Section 13 (4), following notice under Section 13 (2). This is because, the employment of any physical power to dispossess, even in terms of a statute or enforceable order could be only had in exercise of the police power of the State. Even a court does not have the power to dispossess by force, through its officer; but has the power to secure it only through the police machinery of the State. That power cannot be conceded to any individual or institution empowered to take possession, except in cases where the power to physically dispossess is also expressly conferred. That such a power has not been conferred by the Parliament on a secured creditor under the Act and that it is never so intended, are explicit from the very making of Section 14.
5. The repository of the statutory power under Section 14 is the District Magistrate or the Chief Metropolitan Magistrate, WPC.34952/08 Page numbers as the case may be. The Act, the empowering statute, does not authorise delegation of that statutory power. Bereft of that, the repository of that statutory power has to exercise that power by himself and cause the relief to be worked out under his control. That cannot be delegated. He may, for such purpose, issue a commission, even to a subordinate in the official hierarchy, to supervise, or/and authorise the police force to take further action. But, this can be only under his control and orders. Therefore, the delegation done by Ext.P5 is quite impermissible.
6. The precedents laid down by this Court stand to advise me that the debtor is not even entitled to notice of proceedings under Section 14 and that no issues of law or fact are required to be decided on any contentious issues. If that be so, the debtors have to only take the result of the directions, by facing the consequences.
7. On facts, it is seen that Ext.P1 notice under Section 13 (2) was issued on 27.11.2003, more than 5 years ago, recalling an WPC.34952/08 Page numbers amount of Rs.3,72,226/- and interest at 18% per annum from 1.1.2003. Respondents 6 and 7, who are teachers, ought to have fairly and reasonably tried to pay off the outstandings at least by this time. Apparently, it is too late in the day to further drag on the recovery proceedings.
In the light of the aforesaid, the second respondent District Magistrate is directed to take up Ext.P4 to file and pass appropriate orders in accordance with law, in the light of what is stated above, treating Ext.P5 as redundant. The District Magistrate shall issue orders within a period of two weeks from the date of receipt of a copy of this judgment. However, the enforcement of that order will be held back for 45 days from today, to provide a last opportunity to respondents 6 and 7 to pay off the entire outstandings and avoid physical dispossession. The writ petition is ordered accordingly.
Sd/-
THOTTATHIL B.RADHAKRISHNAN, Judge.
kkb.