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2009(1) Bankmann 204 (Mad.)
MADRAS HIGH COURT
T. Sudanthiram, J.
Indian Overseas Bank —Petitioner
versus
Sree Aravindh Steels Ltd.
& Ors. —Respondents
Criminal OP (MD) No. 3102 of 2008
Decided on 9.9.2008
Counsel for the Parties:
For the Petitioner:Ms. J. Maria Roselin for Mr. V. Sribalaji, Advocate.
For the Respondent No. 4 (Crl. Side):Mr. P. Rajendran, Government Advocate.
IMPORTANT POINT
No notice is necessary to borrowers of an application under Section 14(1) SARFAESI Act.
Headnote:Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002—Section 14(1) —Application before Chief Judicial Magistrate by petitioner Bank for taking possession of secured assets—CJM dismissed the application—Revision—No notice was necessary to borrowers—Even if notice was issued by CJM, it was not necessary to give notice to respondents to decide the issue—Non-communication of reasons for non-acceptance of their representation/objection to borrower could not be a bar in entertaining application—Conclusion by CJM that petitioner had not complied with provisions of Section 13(3A) of the Act and thus relief could not be granted under Section 14(1) of the Act was not correct—Impugned order was liable to be set aside and matter remanded for CJM to consider issue a fresh.
Result: Petition allowed.
T. Sudanthiram— This Petition is filed praying to set aside the order passed by the learned Chief Judicial Magistrate, Tiruchirappalli dated 11.12.2007 in Criminal M.P. No.1472 of 2007.
2. The petitioner herein is Indian Overseas Bank, a nationalised Bank, who is a secured creditor. The first respondent herein is a Public Limited Company, who is a principal borrower and the second respondent is the Managing Director and the third respondent is the Director and also the guarantor and the fourth respondent viz., the Inspector of Police, Thuvakudi Police Station is an unnecessary party.
3. The petitioner herein filed an Application before the learned Chief Judicial Magistrate, Tiruchirappalli for taking possession of secured assets under Section 14(1) of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (hereinafter called as SARFAESI Act). As the learned Chief Judicial Magistrate, Tiruchirappalli had dismissed the said application, the petitioner has preferred this petition before this Court under Section 482, Cr.P.C.
4. This being a case of civil nature, the question that arose immediately in the mind of this Court is that whether the application under Section 482, Criminal Procedure Code is maintainable. Though the petitioner could have preferred a civil revision petition under Article 227 of the Constitution of India, the petitioner has not done it so. Though this is a case of civil nature, an order being passed by the learned Chief Judicial Magistrate, Tiruchirappalli, a revision is maintainable under Section 397, Cr.P.C., since, any order passed by any Magistrate can be challenged by way of revision by the aggrieved person under Section 397, Cr.P.C. Further, when the matter came up for hearing before His Lordship Mr. Justice S. Nagamuthu, Hon’ble Judge referred the matter to a Division Bench to decide the question whether the learned Chief Judicial Magistrate, Tiruchirappalli has got power to entertain an application under Section 14 of SARFAESI Act. The matter was heard by the Division Bench and decided as follows:
“Therefore, holding that the term ‘Chief Metropolitan Magistrate’ will have reference to a metropolitan area and the term ‘Chief Judicial Magistrate’ will have reference to an area outside a Metropolitan area, and therefore, the Chief Judicial Magistrate, Tiruchirappalli has got power to entertain a petition under Section 14 of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002, we direct the Registry to place the matter before the concerned Court, for further proceedings.”
5. Now, it is for this Court to decide whether the order passed by the learned Chief Judicial Magistrate, Tiruchirappalli is to be confirmed or liable to be set aside. As per Section 14 of SARFAESI Act, a secured creditor may for the purpose of taking possession or control of any such secured assets, 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 thereof, and the Chief Metropolitan Magistrate or, as the case may be, the District Magistrate shall, on such request being made to him, take possession of such assets and document relating thereto and forward such assets and documents to the secured creditor.
6. In this case, the petitioner-Bank filed an application before the learned Chief Judicial Magistrate, Tiruchirappalli under Section 14 of SARFAESI Act and the learned Chief Judicial Magistrate, Tiruchirappalli also issued summons to the respondents and the third respondent alone filed a counter and the learned Chief Judicial Magistrate, Tiruchirappalli after hearing the learned counsel appearing for the petitioner and third respondent, dismissed the application mainly for the reasons as per the order, which is as follows:
“10. On behalf of the petitioner a notice
