Madras High Court
P.Mookadoss vs The District Collector on 7 July, 2015
Bench: S.Manikumar, G.Chockalingam
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 07.07.2015
Coram
THE HONOURABLE Mr.JUSTICE S.MANIKUMAR
and
THE HONOURABLE Mr.JUSTICE G.CHOCKALINGAM
Writ Petition (MD)No.21130 of 2014
and
M.P.(MD)Nos.1&2 of 2014
P.Mookadoss ... Petitioner
vs
1.The District Collector,
Thoothukudi District,
Thoothukudi.
2.The Authorized Officer,
HDFC Bank Ltd., Mangalmal,
Palayamkottai Road, Tuticorin.
3.The Superintendent of Police,
Tuticorin District, Tuticorin. ... Respondents
Writ Petition filed under Article 226 of the Constitution of
India, praying for issuance of a writ of certiorari, calling for the records
pertaining to the impugned order in Na.Ka.C4/33689/2014, dated 14.11.2014,
passed by respondent No.1 and quashing the same as illegal.
!For Petitioner : Mr.R.Venkatesan
^For Respondents 1&3 : Mr.A.K.Baskarapandian,
Spl.Govt.Pleader.
For Respondent-2 : Mr.Pala.Ramasamy
:ORDER
(Order of the Court was made by S.MANIKUMAR,J) Impugned Notice, dated 14.11.2014, of the District Collector, Tuticorin, issued under Section 14 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (in short ?SARFAESI Act?), translated version, reads as under:
?Letter under reference cited has been received to take possession of the mortgaged properties under SARFAESI Act, 2002, from Mr.Mookadoss and Tmt.Senthurgani, residing at No.24C, Pothanpuram, Tuticorin City and District, for non-payment of Rs.10,17,284/- towards loan amount, obtained from M/s.HDFC Bank.
One more opportunity is given to the individuals to repay the amount. It is hereby requested that the concerned individuals may approach the Bank within 15 days from the date of receipt of this letter and pay the amount due to the loan account and thereby avoid possession proceedings.?
2.Though the petitioner has assailed the same on the grounds that it amounts to non-application of mind and erroneous, we are not inclined to accept the same. Section 14 of SARFAESI Act reads as under:
?14.Chief Metropolitan Magistrate or District Magistrate to assist secured creditor in taking possession of secured asset.--(1) Where the possession of any secured asset is required to be taken by the secured creditor or if any of the secured asset 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 asset, request, in writing, the Chief Metropolitan Magistrate or the District Magistrate within whose jurisdiction any such secured asset or other 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:
Provided that any application by the secured creditor shall be accompanied by an affidavit duly affirmed by the authorised officer of the secured creditor, declaring that--
(i)the aggregate amount of financial assistance granted and the total claim of the Bank as on the date of filing the application;
(ii)the borrower has created security interest over various properties and that the Bank or Financial Institution is holding a valid and subsisting security interest over such properties and the claim of the Bank or Financial Institution is within the limitation period;
(iii)the borrower has created security interest over various properties giving the details of properties referred to in sub-clause (ii) above;
(iv)the borrower has committed default in repayment of the financial assistance granted aggregating the specified amount;
(v)consequent upon such default in repayment of the financial assistance the account of the borrower has been classified as a non- performing asset;
(vi)affirming that the period of sixty days notice as required by the provisions of sub-section (2) of section 13, demanding payment of the defaulted financial assistance has been served on the borrower;
(vii)the objection or representation in reply to the notice received from the borrower has been considered by the secured creditor and reasons for non-acceptance of such objection or representation had been communicated to the borrower;
(viii)the borrower has not made any repayment of the financial assistance in spite of the above notice and the Authorised Officer is, therefore, entitled to take possession of the secured assets under the provisions of sub-section (4) of section 13 read with section 14 of the principal Act;
(ix)that the provisions of this Act and the rules made thereunder had been complied with:
Provided further that on receipt of the affidavit from the Authorised Officer, the District Magistrate or the Chief Metropolitan Magistrate, as the case may be, shall after satisfying the contents of the affidavit pass suitable orders for the purpose of taking possession of the secured assets:
Provided also that the requirement of filing affidavit stated in the first proviso shall not apply to proceeding pending before any District Magistrate or the Chief Metropolitan Magistrate, as the case may be, on the date of commencement of this Act.
(1-A)The District Magistrate or the 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. (2)For the purpose of securing compliance with the provisions of sub-
section (1), the Chief Metropolitan Magistrate or the District Magistrate may take or cause to be taken such steps and use, or cause to be used, such force, as may, in his opinion, be necessary.
(3)No act of the the Chief Metropolitan Magistrate or the District Magistrate any officer authorised by the the Chief Metropolitan Magistrate or the District Magistrate done in pursuance of this section shall be called in question in any Court or before any authority.?
3.Though no separate notice is contemplated under Section 14 of SARFAESI Act, the District Collector cum District Magistrate, Tuticorin District, has provided an opportunity to the petitioner to repay the loan amount. There is no manifest illegality in the impugned proceedings. Accordingly, the writ petition is dismissed. No order as to costs. Connected miscellaneous petitions are also dismissed.
.