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2018 DIGILAW 554 (KER)

HDB Financial Services Limited v. Essco Motors Private Limited

2018-07-11

DAMA SESHADRI NAIDU

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JUDGMENT : Dama Seshadri Naidu, J. 1. Faced with a notice under Section 13(2) of the Securitisation and Reconstructions of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI Act), the respondents filed WP(C) No.2695 of 2017 and invited Ext.P3 judgment. This Court allowed the respondents to clear the loan through installments. The 1st respondent defaulted. 2. When the petitioner creditor proceeded to take possession of the property under Section 14 of the SARFAESI Act, the 1st respondent approached this Court. He filed WP(C) No.920 of 2018 and invited Ext.P5 judgment. This Court refused to interfere; nevertheless, it observed that the 1st respondent could move the Debt Recovery Tribunal. 3. Today at the bar, the petitioner's counsel has submitted that the 1st respondent has so far not moved the Tribunal. The 1st respondent, according to its counsel, has been contemplating to move the Tribunal. 4. As seen from the record, the petitioner creditor approached the learned Chief Judicial Magistrate and filed an affidavit appraising the Court of the developments. The creditor seems to have underlined the fact that the 1st respondent did not get any interim direction, nor as he filed any appeal before the Tribunal. The creditor is also said to have produced a copy of Ext.P5 before the learned Chief Judicial Magistrate. 5. Now, the petitioner contends that despite this Court's refusing to interfere with the matter and despite the 1st respondent's failing to approach the appellate authority, the learned Chief Judicial Magistrate has been adjourning the matters without ordering possession of the property. Ext.P8 reveals the case details. 6. I reckon that the Chief Judicial Magistrate may have decided to proceed cautiously. So that he would not trample upon any interim orders passed by either the High Court or the Tribunal. The caution is appreciative, but the learned Chief Judicial Magistrate seems to be cautious to a fault. If at all the 1st respondent obtains a stay, it is his duty and burden to appraise the Court about the stay, if it has obtained one. The learned Chief Judicial Magistrate, therefore need not wait until the 1st respondent stirs from its slumber. 7. So I dispose of the writ petition, observing that any further delay on the learned Chief Judicial Magistrate's part will only put a premium on a defaulting debtor. The learned Chief Judicial Magistrate, therefore need not wait until the 1st respondent stirs from its slumber. 7. So I dispose of the writ petition, observing that any further delay on the learned Chief Judicial Magistrate's part will only put a premium on a defaulting debtor. Therefore, I hope that he will act with dispatch and conclude the proceedings at the earliest.