Oral Judgment: (Ranjana Desai, J.)

1. In all these petitions, the petitioner is the Arjun Urban Co-operative Bank Limited. The petitioner is a Society registered under the relevant provisions of the Maharashtra Co-operative Societies Act, 1960 and is running a business of banking as per the provisions of the Banking Regulations Act, 1945. All the petitions can be disposed of by this common judgment because admittedly, issues involved in them are common.

2. We take Criminal Writ Petition No.1188 of 2008 as the lead petition.

3. The case of the petitioner is that one Mr. Nilamkumar D. Gangi, proprietor of Hindmata Cloth Emporium (for short, “the said borrower”), availed cash credit loan facility of Rs.7,00,000/- from the petitioner and offered security by mortgaging a flat being Flat No.T-5, sitauted at Modikhana, Gulmohar Building, 3rd floor, B Wing, Near Nath Plaza, Solapur. He is respondent 3 herein. One Mr. Rajan M. Habib, Prashant P. Gangi and Mr. Neeta Nirmalkumar Gangi stood as guarantors for him. In short, the case of the petitioner is that the said borrower failed and neglected to repay the loan amount. The petitioner, therefore, initiated action under the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, (for short, “the NPA Act”). After following the necessary procedure since the borrower failed and neglected to repay the amount, the petitioner approached respondent 1 i.e. the Chief Judicial Magistrate, Solapur under Section 14 of the NPA Act for securing assistance in taking possession of the secured asset.

4. Learned counsel for the petitioner submitted that in Trade Well & Anr. v. Indian Bank & Anr., 2007 (1) Bom.C.R. (Cri.) 783, after referring to the Supreme Court’s judgment in Transcore v. Union of India & Anr. AIR 2007 SC 712, this court has made it clear that the Chief Metropolitan Magistrate (for convenience, “the CMM”) or District Magistrate (for convenience, “the DM”) acting under Section 14 of the NPA Act is not required to give notice either to the borrower or to the third parties. Learned counsel submitted that it was, therefore, not necessary to make the borrower and the guarantors parties to the application before the Chief Judicial Magistrate (for convenience, “the CJM”). However, inadvertently, they were made parties to the said application. The CJM did not issue any notice to them and passed the order after hearing counsel for the petitioner. Learned counsel, therefore, prayed that he may be permitted to delete the names of the borrower and the guarantors from the instant writ petitions and respondents 1 to 4 in the criminal applications filed before the CJM. We have permitted him to delete the names of the borrower and the guarantors from the instant writ petitions and also from the criminal applications filed before the CJM in view of the law laid down by this court in Trade Well.

5. Learned counsel for the petitioner submitted that the CJM ought to have followed the judgment of this court in Trade Well, which is based on the judgment of the Supreme Court in Transcore. He submitted that instead of following it, the CJM went on to observe that except documents of loan transaction, there are no other documents to show what follow up action was taken by the respondents after completion of statutory period of sixty days after service of demand notice dated 21/11/2008. Learned counsel submitted that inasmuch as the CJM has exceeded his jurisdiction, the impugned order be set aside.

6. In this case, it is not necessary for us to go into this aspect because, in our opinion, the petitioner has chosen a wrong forum. Section 14 of the NPA Act is clearly worded. It states that an application can be made by the secured creditor for taking possession of the secured assets to the Chief Metropolitan Magistrate (for convenience, “the CMM”) or to the DM. The petitioner, therefore, could not have filed the application before the CJM. The CJM ought not to