Point of Law : It is clear that the learned Chief Judicial Magistrate will not become functous officio by issuing an order under section 14 of the SARFAESI Act and also that the jurisdiction under section 14 is only to render assistance to facilitate delivery of possession at the earliest.

JUDGMENT :

These two writ petitions relate to the proceedings initiated by the bank for enforcement of the security interest. Petitioner in W.P.(C) No.11635 of 2021 (hereinafter referred to as 'the bank' for short) challenges Ext.P10 order issued by the learned Chief Judicial Magistrate, Kollam while petitioner in W.P.(C) No.17918 of 2021 (hereinafter referred to as 'the borrower' for short) seeks a direction to the 2nd respondent for consideration of his application for settlement of the loan liability by granting a breathing time for him to repay the amounts and to stay all recovery proceedings till a decision is taken on the application. Since both these matters are connected, they were heard together.

2. Petitioner’s wife had availed two loans from the bank to the extent of Rs.6,00,000/- as a vehicular loan and Rs.4,00,00,000/- as a working capital loan for her cashew trading business. Petitioner was the guarantor for those loans. Due to default in repayment, the loans were classified as NPA on 28.01.2019. Pursuant to the bank issuing notice under section 13(2) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 ('the SARFAESI Act' for short), possession of the assets were symbolically taken on 17.01.2020. On the date of filing of the writ petitions, liability under the two loans was Rs.4,78,97,589.88.

3. Through a petition dated 26.02.2020, the bank approached the learned Chief Judicial Magistrate, Kollam, invoking section 14 of the SARFAESI Act. By Ext.P2 order dated 26.02.2020 in M.C. No.225 of 2020, the learned Chief Judicial Magistrate appointed two Advocates as Commissioners to take possession of five different items of properties. It is pointed out by the bank that the Advocate Commissioner appointed to take possession of item Nos.1 and 2 has not so far given any notice to comply with the order of the learned Chief Judicial Magistrate, while the second Advocate Commissioner took possession of two items of properties leaving out item No.4.

4. In the meantime, the borrower approached this Court seeking an instalment facility for repayment of the loan liability and through Ext.P3 judgment dated 02.09.2019, this Court granted liberty to the borrower to pay off the outstanding amounts in twelve equal monthly instalments, commencing from 5.11.2019. The bank has pleaded that they invoked the authority of the Chief Judicial Magistrate, under section 14 of the SARFAESI Act since the borrower failed to even comply with the directions of this Court for payment in instalment.

5. In the meantime, the borrower moved an application before the learned Chief Judicial Magistrate by filing C.M.P. No.548 of 2021 in M.C. No. 225 of 2020 seeking a direction to the bank not to proceed with the dispossession of the borrower and to direct the Advocate Commissioner not to execute the order till a decision is taken by the committee appointed by the Government for a revival of the cashew industry.

6. In spite of detailed objections filed by the bank pointing out the absence of jurisdiction with the learned Chief Judicial Magistrate to pass orders or even to hear the borrower, the learned Chief Judicial Magistrate, by a detailed order produced as Ext.P10, dismissed the application of the borrower. While rejecting the application, the learned Magistrate imposed conditions for taking possession of the secured asset No.4. The bank has challenged the imposition of conditions No. (b), (h) and (k) in Ext.P10 order of the learned Chief Judicial Magistrate. A declaration is also sought that the learned Chief Judicial Magistrate under section 14 of the SARFAESI Act does not have a power of adjudication or a power to direct identification of property especially when there is no dispute on identity. For the purpose of reference, last paragraph of the order impugned containing all the conditions imposed is extracted below:

“8. In the result, the application is dismissed without cost and the original petition