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2011 DIGILAW 498 (KAR)

Shanti Charitable Trust v. State Bank of India

2011-05-03

JAWAD RAHIM

body2011
Judgment : 1. Section 397, Cr. P.C. is invoked by the petitioner to question the order passed by the learned Chief Judicial Magistrate, Bangalore Rural District in C.Mis. No. 22/2011 for evicting petitioner for delivery of possession to respondent. 2. Petition is listed for orders after notice to the respondent Bank. 3. Issue in limine is jurisdiction of the Chief Judicial Magistrate, Bangalore Rural District over the property in question relating to which coercive process for evicting the occupants is issued in terms of Section 14 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (hereinafter referred to as “the Act” for short) is brought into play. 4. The contention of the petitioner’s counsel is that under Section 14. there is no reference to the Chief Judicial Magistrate except Chief Metropolitan Magistrate and the Executive Magistrate, who are clothed with the power of issuing coercive process like granting police help for enforcing the order passed under the Act or to take possession of the property or the document. Such power is not exercisable by any other Court including the Court of Chief Judicial Magistrate. But the learned Counsel fairly concedes that under the Act, the territorial jurisdiction of Metropolitan Magistrate and Executive Magistrate is not defined. The Metropolitan Magistrate and Executive Magistrate by implication, are therefore empowered under Section 14 of the Act, to exercise power in the absence of any restriction and definition. In the instant case, the impugned order is passed by Chief Judicial Magistrate. The contention of the petitioner is that Cr.P.C. is not applicable to proceedings under the Act. The contention that the provisions of Cr.P.C. is not made applicable has to be discounted. Once a statute confers jurisdiction on a Magistrate to perform any duty or act as envisaged under the provisions of the Act, then in the absence of any procedure prescribed under that Act, the procedure prescribed under the Code of Criminal Procedure applies. 5. In the instant case, the jurisdiction is conferred on the Magistrate named in Section 14 of the Act and to exercise such power, the procedure prescribed under the Code of Criminal Procedure has to be followed. 5. In the instant case, the jurisdiction is conferred on the Magistrate named in Section 14 of the Act and to exercise such power, the procedure prescribed under the Code of Criminal Procedure has to be followed. As there is no rule or procedure either under the Act or under the Rules made therein the contention of the learned counsel that the provisions of the Code of Criminal Procedure is not applicable has no consequence. But the question is whether Chief Judicial Magistrate has jurisdiction. Section 14 reads. “14. Chief Metropolitan Magistrate or District Magistrate to assist secured creditor in taking possession of secured asset – (1) Where the possession of any secured creditor of if any of the secured asset is required to be sold or transferred by the secured creditors 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 of the District Magistrate within whose jurisdiction any such secured asset or other documents relating thereto may be situated or found, to take possession thereof, any 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 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 if 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.” 6. From the language in Section 14 of the Act it is evident that it is Metropolitan Magistrate or the District Magistrate are empowered to assist secured creditor in taking possession of secured asset. The provision also envisages that “within whose jurisdiction any such secured asset or other documents relating thereto may be situated or found”. Therefore, there is reference to the territorial jurisdiction of these two officers viz., Metropolitan Magistrate and Executive Magistrate. The provision also envisages that “within whose jurisdiction any such secured asset or other documents relating thereto may be situated or found”. Therefore, there is reference to the territorial jurisdiction of these two officers viz., Metropolitan Magistrate and Executive Magistrate. If the secured properties are situates within Metropolitan area, undoubtedly, by implication it is the Metropolitan Magistrate who will have the jurisdiction to exercise powers under Section 14 of the Act and in cases otherwise, it is the Executive Magistrate will have the jurisdiction to exercise such powers. It is material to note that the name of the ‘Chief Judicial Magistrate’ is conspicuously absent and there is no mention of ‘Chief Judicious Magistrate’ in Section 14 of the Act an only mention is to the ‘Metropolitan Magistrate and ‘District Magistrate’. From this, it can be gathered that Metropolitan Magistrate would be competent to have the jurisdiction in respect of metropolitan area and in other areas like rural areas. It is the Executive Magistrate. Had there been mention of the Chief Judicial Magistrate in Section 14 of the Act, perhaps a view could have been taken that the jurisdiction is also conferred on the Chief Judicial Magistrate, but that is not so. 7. The order impugned is passed by the Chief Judicial Magistrate who has not been conferred with the jurisdiction in Section 14 of the Act. Hence, it is unsustainable. If the bank of creditor desires to approach the competent officer, it could approach only the Metropolitan Magistrate or the Executive Magistrate, as the case may be. Thus the impugned order is set aside reserving liberty to the respondent to approach competent authority under the Act. With the above observations, the revision petition is disposed off.