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2015 DIGILAW 207 (KAR)

Nagarathna v. Indian Bank, Koramangala Branch q

2015-02-24

S.ABDUL NAZEER

body2015
ORDER : S. Abdul Nazeer, J. 1. In these cases, the petitioners have called in question the validity of the order at Annexure-A, dated 20-8-2014 in Crl. Misc. No. 9894 of 2013 whereby the 6th Additional Chief Metropolitan Magistrate, Bangalore, has permitted the first respondent-Bank to take possession of the secured properties which are morefully described in the schedule to the writ petitions under Section 14 of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 ('Act' for short). The contention of the learned Counsel for the petitioners is that the entire procedure followed by the Authorised Officer of the first respondent-Bank for taking possession of the secured assets is contrary to the provisions of the Act. Therefore, the order is vitiated. In this connection, he points out Section 14(1)(b)(ix) of the Act, which states that the application of the secured creditor shall be accompanied by a duly affirmed affidavit of the Authorised Officer stating that the provisions of the Act and the Rules made thereunder had been fully complied with and that the Magistrate after satisfying the contents of the affidavit alone has to pass suitable orders for the purpose of taking possession of the secured assets. Learned Counsel further submits that right from the issuance of notice under Section 13(2) till the passing of the order, the procedure has not been followed. 2. On the other hand, learned Counsel appearing for the respondents have sought to justify the impugned order. They have taken me through various proceedings initiated by the petitioners under the Act challenging the possession notice under Section 13(4) and also the challenge made by them for sale of the property at various stages. It is their submission that petitioners cannot reagitate those contentions in these writ petitions as all those contentions have been rejected by the DRT, DRAT and as also by this Court in earlier proceedings. 3. I have carefully considered the arguments made by the learned Counsel at the Bar and perused the materials placed on record. 4. The petitioners had availed certain financial assistance from the 1st respondent-Bank. Since they defaulted in payment of the secured debts, a notice under Section 13(2) was issued to discharge their liabilities to the secured creditor. The petitioners have raised objections to the said notice. 4. The petitioners had availed certain financial assistance from the 1st respondent-Bank. Since they defaulted in payment of the secured debts, a notice under Section 13(2) was issued to discharge their liabilities to the secured creditor. The petitioners have raised objections to the said notice. After considering the objections, the secured creditor has come to the conclusion that the objection is not acceptable. This objection was communicated to the petitioners. This was followed by possession notice under Section 13(4) of the Act with a view to recover the secured debt by taking possession of the property in question. 5. The petitioners have challenged the measures taken under Section 13(4) by filing an application under Section 17 before the DRT, Bangalore, in S.A. No. 276 of 2012. In the said case, petitioners made a statement that they would repay the defaulted installments by the end of December 2012. The DRT recorded the same and closed the application. However, the petitioners did not pay the amount as undertaken by them before the DRT. 6. The Authorised Officer issued a sale notice dated 25-6-2013 for auctioning of the property in question. This was challenged by the petitioners by filing an appeal in S.A. No. 361 of 2013 before the DRT. The said appeal was dismissed on 7-1-2014. Thereafter, the property was auctioned. In the said auction, respondent 2 was the successful bidder. The sale was confirmed and a sale certificate was also issued in his favour. It is submitted on behalf of the respondents that the sale certificate is registered and katha of the said property has also been transferred in favour of the second respondent. 7. The petitioners have challenged the said sale by filing an appeal in IR No. 133 of 2014 before the DRT. Since there was delay in filing the appeal, the DRT dismissed the appeal. Feeling aggrieved, the petitioners filed writ petitions before this Court in W.P. Nos. 19551 to 19555 of 2014. This Court by order dated 23-7-2014 dismissed the said writ petitions with liberty to the petitioners to avail the alternative remedy. The petitioners filed an appeal in S.A. No. 426 of 2014 before the DRAT, Chennai challenging the said order. The DRAT passed a conditional order on 29-9-2014. The petitioners have failed to deposit the amount in terms of the order of the DRAT. 8. The petitioners filed an appeal in S.A. No. 426 of 2014 before the DRAT, Chennai challenging the said order. The DRAT passed a conditional order on 29-9-2014. The petitioners have failed to deposit the amount in terms of the order of the DRAT. 8. Thereafter, the first respondent-Bank filed a petition under Section 14 of the Act before the Court below. In the said case, the petitioners have filed their objections. After considering the objections and after hearing the learned Counsel for the parties, the learned Magistrate has allowed the application as per the order at Annexure-A. Having heard the learned Counsel for the parties, I do not find any merit in these cases. 9. As noticed above, the petitioners have raised all the contentions in these writ petitions, which have been raised before the DRT in S.A. No. 276 of 2012. In the said case, the petitioners have agreed to repay the defaulted amount. They have failed to obey the said order. In the circumstances, question of reagitating all those contentions in these writ petitions does not arise. 10. Section 14 of the Act provides for granting assistance to the secured creditor to take possession of the secured asset. It states that 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 the 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 documents relating thereto may be situated or found, to take possession therefore, and the Chief Metropolitan Magistrate or, as the case may be, the District Magistrate shall, on such request being made to him forward such assets 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 the Provision of the 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. Perusal of the order impugned herein would clearly indicate that the Magistrate is satisfied with the contents of the affidavit. The order was passed after hearing the petitioners and the first respondent-Bank. I do not find any infirmity in the order. Writ petitions are accordingly dismissed. No costs.