Whether the concerned Magistrate is entitled to decide the merits of the contentions as to the claim for exclusion of the property under Section 31 (i) of the SARFAESI Act, while entertaining an application for assistance to take physical possession, invoking the power under Section 14 of the Act, is the subject matter of challenge.

2. The only grievance projected in the present Writ Petition is against Exts.P7 and P8 proceedings, in connection with the application preferred under Section 14 of the SARFAESI Act, before the Chief Judicial Magistrate, Manjeri, whereby an Advocate Commissioner has been appointed to take over possession of the secured asset, pursuant to the application filed by the Bank in this regard. The case of the petitioner is that, the property herein is an 'agricultural land', which is not liable to be proceeded against, by virtue of the exclusion stipulated under Section 31 (i) of the Act.

3. The respondent Bank, while disputing the contentions raised from the part of the petitioners, both on legal as well as factual grounds, states that, one of the guarantors by name T. Kunhimuhammed arrayed as the 4th respondent in the present proceedings and a partner of the firm, had earlier approached the DRT, Ernakulam by filing S.A. 29 of 2008, wherein interference was declined, however permitting the parties including the firm to discharge the liability within 3 months from 21.4.2008 as borne by Annexure R5 (a). It is the case of the respondent Bank that neither the firm nor its partners/guarantors took any efforts to clear the liability within the specified time or even thereafter. Accordingly the sale of the of the property was notified and in the course of proceedings to take over the physical possession of the property, the Bank had filed necessary proceedings before the Chief Judicial Magistrate's Court, Manjeri. During the pendency of the above proceedings before the Magistrate's Court, the first petitioner herein approached this Court by filing WP(C) No. 3104 of 2009, wherein interference was declined by this Court as borne by Annexure R5 (b), holding that the first petitioner (Writ Petitioner in WP(C) No. 3104 of 2009) has already suffered a verdict at the hands of the DRT, Ernakulam and that the parties will be bound by the order of the DRT. Taking note of the proceedings stated as pending before the Chief Judicial Magistrate's Court,

Manjeri, it was observed that the petitioner could raise his contentions before the Chief Judicial Magistrate's Court and that dismissal of the Writ Petition will not stand in the way of such course of action.

4. The learned counsel for the respondent Bank submits that, nothing has been mentioned by the petitioners about the earlier Writ Petition filed by the first petitioner leading to Ext.R5(b) judgment in the present proceeding and that the petitioners have not chosen to approach this Court with clean hands, under which circumstance, the Writ Petition is liable to be dismissed on this score alone.

5. As noted above, the orders passed by the DRT earlier have not been subjected to challenge in the present Writ Petition. The petitioners are only aggrieved of the orders passed by the Chief Judicial Magistrate's Court, Manjeri, appointing the Advocate Commissioner to take over the physical possession of the property in question under Section 14 of the SARFAESI Act . The learned counsel for the petitioners submits that, the said provision is not liable to be invoked, for the plain reason that the property concerned is an 'agricultural land'; being excluded by virtue of Section 31 (i) of the Act, which aspect ought to have been considered by the learned Chief Judicial Magistrate, before passing the orders under Section 14.

6. The scope and ambit of Section 14 is very much discernible from the terminology used therein, which is extracted below:-

14 Chief Metropolitan Magistrate or District Magistrate to assist secured creditor in taking possession of secured asset -

(