The main legal point established in the judgment is the lack of power of review or recall for the Chief Metropolitan Magistrate under the SARFAESI Act, as determined by the Supreme Court's decision in the case of Kalabharati Advertising Vs. Hemant Vimalnath Narichania and others (2010 (9) SCC 437 = MANU/SC/0674/2010).

JUDGMENT

(Prayer: Writ Petition No.7342 of 2020 filed under Article 226 of the Constitution of India, praying for issuance of a Writ of Certiorarified Mandamus to quash the order passed in Crl.M.P.No.4190 of 2017 in Crl.M.P.No.1669 of 2016, dated 10.07.2018 and consequently direct the fifth and sixth respondents to hand over the possession of the property in Flat No.B-22, VIII Floor, measuring plinth area of 1618 Sq.Ft. at Brownstone Apartments, Mahalingapuram High Road, Chennai- 600 034 together with 1618/168092 and 160/168092 parts of undivided shares in 23 grounds 702 sq.ft. of the vacant land bearing new S.No.620/50 block No.36, which forms part of the large extent of 490 grounds in old patta No.266, bearing Survey Nos.610 and 653 to 668 in Mahalingapuram in Nungambakkam Village in Egmore-Nungambakkam Taluk, Madras District as per the Sale Certificate, dated 15.11.2008 to the petitioner herein.

Writ Petition No.27135 of 2021 filed under Article 226 of the Constitution of India, praying for issuance of a Writ of Certiorarified Mandamus to call for records comprised in Order dated 14.06.2017 in Crl.M.P.No.1669 of 2016 passed by the Chief Metropolitan Magistrate, Allikulam, Chennai, quash the same as arbitrary, illegal, unconstitutional and consequently forbear first respondent from acting contrary to the terms of the compromise dated 24.12.2011 by seeking possession of the Flat No.B-22, 8th Floor, Brownstone Apartment, Mahalingapuram, Chennai-600 034.)

Munishwar Nath Bhandari, J.

W.P.No.7342 of 2020:

1. Challenge is made to the order dated 10.07.2018 passed by the learned Chief Metropolitan Magistrate, Chennai in Crl.M.P.No.4190 of 2017 in Crl.M.P.No.1669 of 2016. The said challenge is made precisely on the ground of competence of the Chief Metropolitan Magistrate in passing the order under Section 14 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI Act). It is for the reason that earlier, an order was passed under Section 14 of the Act, 2002, dated 14.06.2017 and now, the order passed is dated 10.07.2018. It is submitted that when once an order was passed under Section 14 of the Act, 2002, the learned Chief Metropolitan Magistrate becomes "functus-officio" and otherwise, he has no power to review or recall the order, as the statute does not provide for it. It is otherwise going against the order passed by the Supreme Court on settlement between the parties. The Chief Metropolitan Magistrate was acting on the application of the first respondent.

2. Coming to the facts of this case, it is stated that, after the litigation between the bo

rower, the Bank and the auction purchaser, i.e. the writ petitioner in W.P.No.7342 of 2020, a settlement was arrived at and in terms of the settlement, a criminal appeal (in Crl.M.P.No.5469 of 2012) in Crl.A.No.1524 of 2011, before the Apex Court, was disposed of by judgment dated 07.05.2012. Referring to the memo of settlement entered into between the parties, it is submitted that as far as the right of the auction purchaser is concerned, it was kept confirmed and in view of the above, the Bank was directed to release the papers in favour of the borrower. By order of the Chief Metropolitan Magistrate under challenge, now, hindrance has been created to get the possession of the property by the auction purchaser, despite the deposit of the entire money and therefore, the Writ Petition had been filed not only challenging the order passed by the Chief Metropolitan Magistrate, but also seeking further direction for handing over the possession of the property to the auction purchaser.

3. The learned counsel appearing for the Bank submitted that pursuant to the order of the Supreme Court, on settlement between the parties, they have received the entire amount of sale proceeds from the auction purchaser, but could not give possession of the property on account of the order passed by the Chief Metropolitan Magistrate for the reason that the