1. Is the Advocate Commissioner an officer subordinate to the District Magistrate or the Chief Metropolitan Magistrate in the context of Section 14 (1A) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (the SARFAESI Act for short)?

2. The petitioner bank moved the court of the Chief Judicial Magistrate at Ernakulam in Crl. M.P. No. 1814/2012 under Section 14 of the SARFAESI Act seeking to appoint an Advocate Commissioner. This was for the purpose of assisting the bank to take actual physical possession of the property offered as security interest by the respondent borrower at the time of availing the loan. The court of the Chief Judicial Magistrate allowed the request and issued a warrant of appointment to the Advocate Commissioner to hand over possession of the property to the bank and report. The borrower aggrieved by the warrant of appointment filed Securitisation Application No. 308/2013 on the file of the Debts Recovery Tribunal under Section 17 of the SARFAESI Act. The borrower contended that the secured asset is an agricultural property exempted from the purview of the SARFAESI Act and that the Advocate Commissioner is not an officer subordinate authorised. The Debts Recovery Tribunal after hearing the borrower and the bank held that there is dearth of material to hold prima facie that the secured asset is an agricultural land and hence exempt under Section 31 (i) of the SARFAESI Act. Nevertheless an interim order was passed in I.A. No. 2489/2013 in S.A. No. 308/2013 by the Debts Recovery Tribunal interdicting the Advocate Commissioner from taking physical possession. This was on the premise that the Advocate Commissioner is not an officer subordinate to the Chief Judicial Magistrate empowered to take possession under Section 14 (1A) of the SARFAESI Act. The interim order so passed by the Debts Recovery Tribunal is challenged by the bank under Article 227 of the Constitution of India pointing out that several interim orders of the nature are being passed clogging the recovery proceedings.

3. I heard Mr. A. Antony, Advocate on behalf of the petitioner bank and Mr. Shaji Chirayath, Advocate on behalf of the respondent borrower.

4. Section 14 (1A) of the SARFAESI Act is as follows:

“14. Chief Metropolitan Magistrate or District Magistrate to assist secured creditor in taking possession of secured asset -- (1) x x x x x x x x x x x x x x x x x x x x x x x x x x x x x

(1A) The District Magistrate or the Chief Metropolitan Magistrate may authorise any officer subordinate to him,-

(i) to take possession of such assets and documents relating thereto; and

(ii) to forward such assets and documents to the secured creditor”. (emphasis supplied)

A division bench of this Court has in Muhammed Ashraf Vs. Union of India [2008 (4) KLT 1] held that a Chief Judicial Magistrate in a non-metropolitan area stands in the same footing as Chief Metropolitan Magistrate in metropolitan area. Their designations are used synonymously to denote the authority depending upon where one is situated in a metropolitan area or non-metropolitan area. It was categorically held therein after a conspectus of all statutory provisions that the jurisdiction under Section 14 of the SARFAESI Act can be exercised by the Chief Judicial Magistrate in non-metropolitan areas. The Supreme Court dismissed Special Leave to Appeal (Civil) No. 1671/2009 filed against the judgment of the division bench which I respectfully follow. It is unnecessary to discuss this issue again since the decision in Muhammed Ashraf's case is eloquent wherein the provisions of the Code of Criminal Procedure, 1973 were also called in aid. I am unable to subscribe to the contrary view held by the full bench of the High Court of Madras in K. Arockiaraj Vs. The Chief Judicial Magistrate and others [2013 (4) KLT S.N.39]. The observation therein that the SARFAESI Act is complete Act by itself and that the provisions of the Code of Cri