Judgment :

Chelameswar, J.

1. Leave granted.

2. Since both the appeals raise a common question of law, the same are being disposed of by this common judgment. For the sake of convenience, we shall refer to the facts in Criminal Appeal arising out of Special Leave Petition (Criminal) No.2038 of 2011.

3. This appeal arises out of judgment and order of the High Court of Judicature at Madras in Writ Petition No.4600 of 2010 dated 23rd January, 2003.

4. The first respondent is a guarantor of the borrower to loan transaction whereby the second respondent borrowed money from the appellant herein. The undisputed facts are that the first respondent created a mortgage on certain property (Land and building comprised in Re-survey No.493/2 lying within the sub-registration district of Saidapet hereinafter referred to as the "secured asset") owned by him to secure the abovementioned loan. [Section 2 (zc) - "secured asset" means the property on which security interest is created;]

5. On 15.11.2007, a notice under section 13(2) [Section 13(2) Where any borrower, who is under a liability to a secured creditor under a security agreement, makes any default in repayment of secured debt or any instalment thereof, and his account in respect of such debt is classified by the secured creditor as non-performing asset, then, the secured creditor may require the borrower by notice in writing to discharge in full his liabilities to the secured creditor within sixty days from the date of notice failing which the secured creditor shall be entitled to exercise all or any of the rights under sub-section (4).] of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (hereinafter referred to as "the SARFAESI Act") demanding the repayment of the loan amount along with interest within a period of sixty days was issued inter alia to the borrower as well as the guarantor (respondent nos.2 and 1 herein). The said notice also advised the respondents to comply with the demand in order to avoid further action under the Act. The first respondent neither made the payment nor raised any objection to the said demand.

6. Consequent upon the failure of the respondents to make the payments the appellant herein made an application under section 14 [14. Chief Metropolitan Magistrate or District Magistrate to assist secured creditor in taking possession of secured asset.-

(1) Where the possession of any secured asset is required to be taken by the secured creditor or if any of the secured asset is required to be sold or transferred by the secured creditor under the provisions of this Act, the secured creditor may, for the purpose of taking possession or control of any such secured asset, request, in writing, the Chief Metropolitan Magistrate or the District Magistrate within whose jurisdiction any such secured asset or other documents relating thereto may be situated or found, to take possession thereof, and the Chief Metropolitan Magistrate or, as the case may be, the District Magistrate shall, on such request being made to him-

(a) take possession of such asset and documents relating thereto; and

(b) forward such assets and documents to the secured creditor;] of the SARFAESI Act in the Court of Chief Judicial Magistrate, Chengalpattu requesting him to take possession of the secured asset and to handover the same to the appellant.

7. Pursuant to the abovementioned application, the Chief Judicial Magistrate, Chengalpattu by his proceeding dated 14.12.2009 appointed an Advocate commissioner to take possession of the secured asset and to handover the same to the appellant herein.

8. Challenging the legality of the proceedings dated 14.12.2009 the first respondent approached the High Court. By the judgment under appeal, the first respondent's writ petition came to be allowed by a Division Bench setting aside the order impugned therein.

9. The High Court recorded the submissions made before it as follows:

"3. The learned counsel a