The main legal point established in the judgment is the necessity of strict compliance with the provisions of the SARFAESI Act, including the requirement of a non-speaking order and the need for minimum application of mind by the magistrate when invoking Section 14 of the Act.

D. MURUGESAN, J.

1. The writ petition questions the following order of the Chief Judicial Magistrate dated 14.10.2010 passed under Section 14 of the SARFAESI Act,

"Whereas it is deemed requisite for the purpose of this petition that a commission should be issue. Your are hereby appointed as Commissioner for the purpose of taking possession of the petition mentioned property described hereunder to take possession of the secured assets mentioned in the schedule and to had over the same to the Authorised Officer of the petitioner bank with the assistance of the Inspector of Police, B.5 Singanallur Police Station, Coimbatore.

A sum of Rs.15000/- (Rupees fifteen thousand only) being your fee in the above and, the same will be paid directly by the petitioner.

SCHEDULE OF PROPERTY

The property belongs to Sri R.Siva Subramaniyam, S/o.Raja Naidu, in Coimbatore Registration District, Singanallur Village, R.S.No.109/1, Punja acre 5.19, in this extent of 2.59 ½ acres of land, in this excluding the 0.44 ½ acre of land the remaining extent of 2.15 acres of land, in this the house site No.22 among the layout formed and situates within the following boundaries:

East of the house site No.17

West of 20 feet broad north south road

South of the house site No.21

North of the R.S.No.110

Which admeasures 40'6" on east west on south, 41'3" feet on east west on north and 37'6" on north south on both sides with a total extent of 1533 sq.ft of land and the house therein with Door No.22 of Renuka Nagar and the common rights in all roads and all easementary thereo.

As per the sub-divisions the above said property situates in R.S.No.109/1E and within the Coimbatore Corporation limits."

The challenge to the above order arises under the following circumstances.

2. The petitioner availed a loan of Rs.55 lakhs from the State Bank of India, Erode Branch, during the year 2008. The petitioner became defaulter in repayment after April, 2009. The debt of the petitioner became a non-performing asset and hence, the respondent-bank issued notice under Section 13(2) of the SARFAESI Act dated 01.03.2010 demanding a sum of Rs.55,81,544/-. As the said demand notice was not honoured and the amount demanded was not paid, the respondent-bank issued possession notice dated 05.05.2010 under Section 13(4) and had taken symbolic possession.

3. The notice under Section 13(4) was questioned by the petitioner in W.P.No.13004 of 2010 and the same was dismissed by this Court on 23.08.2010 on the ground that the petitioner has got a remedy of appeal under Section 17 of the Act. Thereafter, the petitioner had filed an appeal before the Debts Recovery Tribunal, Coimbatore challenging the possession notice with delay in preferring the appeal. While the appeal is pending, the respondent-bank has also filed an application under Section 14 of the Act before the learned Chief Judicial Magistrate, Coimbatore, who passed the order questioned in this writ petition.

4. We have heard the learned counsel appearing for the petitioner and the learned counsel for the respondents-bank.

5. The question for our consideration is as to whether an order of the kind passed by the learned Chief Judicial Magistrate could be sustained in the eye of law.

6. The learned counsel appearing for the petitioner would submit that though there is a provision of appeal as per the judgment of the Apex Court in (2010) 8 SCC 110, United Bank of India vs. Satyavati Tondon and others, in the event the order is ex facie illegal and contrary to the settled law, the writ petition is maintainable and the alternative remedy cannot be a bar in such matters. As the order is passed without application of mind, it is liable to be set aside.

7. On the other hand, two objections are raised by the learned counsel appearing for the respondents-bank. According to the learned counsel for the respondents-bank, the petitioner has already filed an appeal before the Tribunal questioning the order of the learned Chief Judicial Magistrate. Having a