Devan Housing Finance Corporation Limited v. Aboobacker P A
2018-06-28
K.ABRAHAM MATHEW
body2018
DigiLaw.ai
JUDGMENT : K. Abraham Mathew, J. 1. The petitioner company is a financial institution coming under the purview of SARFAESI Act. With the financial assistance given by it, respondents 11 & 12 purchased a residential building. It was declared a non performing asset and proceedings were initiated under the provisions of the SARFAESI Act. The petitioner made an application to the Chief Judicial Magistrate concerned for assistance to take possession of the property as contemplated under Section 14 of the SARFAESI Act. The learned magistrate ordered issuance of notice to respondents 11 & 12. Though the application was filed on 19.04.2018, it was posted to 24.12.2018 for return of notice to respondents 11 & 12. The procedure adopted by the learned magistrate is challenged in this Original Petition. 2. Heard the learned counsel for the petitioner. 3. This Court in Roshan Narayanan C.S. v. Authorized Officer, Central Bank of India & Another [ 2017 (3) KHC 617 : 2017 (3) KLJ 408 ] has discussed the nature of the functions a magistrate is supposed to discharge when he receives an application under Section 14 of the SARFAESI Act. He has not to perform any judicial function. In fact, it is executive in nature. He has to only facilitate taking of possession of the property by the secured creditor. In this view of the matter, even the order passed by the magistrate to issue notice to respondents 11 & 12 was illegal. The second proviso to Section 14 of the SARFAESI Act mandates that the magistrate shall pass suitable orders for the purpose of taking possession of the secured assets within a period of 30 days from the date of application. It was in spite of this mandate, the learned Chief Judicial Magistrate posted the case beyond the period of six months. It is totally unacceptable. In these circumstances, the learned magistrate is directed to advance the posting of the case suo motu with notice to the petitioner as well as respondents 11 & 12 in this Original Petition, if they have already entered appearance, and dispose of the matter within one week from the date of the advanced posting date. With the above direction, this Original Petition is disposed of. The petitioner may file application to advance the posting of the case in similar cases.