Allowed

Hdfc Bank Ltd. v. P.M.Jacob

Kerala HC3 Sept 2012WP(C)/11922/2012

Case brief

AI extract

What is this about?

In a writ petition, HDFC Bank sought a direction for the Chief Judicial Magistrate to pass final orders under Section 14 of the SARFAESI Act without awaiting service of a notice, relying on precedents establishing that such notice issuance is not obligatory for the Magistrate.

What did the court decide?

Directing the Chief Judicial Magistrate, Kottayam to pass final orders on the bank's application without further delay if the overdue amount is not paid by 01.09.2012.

Hdfc Bank Ltd. Vs P.M.Jacob — Cheque Dishonour | Kerala HC (2012)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE ANTONY DOMINIC

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MONDAY, THE 3RD DAY OF SEPTEMBER 2012/12TH BHADRA 1934

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WP(C).No. 11922 of 2012 (M)

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CMP.NO.246/2012 of C.J.M.,KOTTAYAM

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PETITIONER(S):

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HDFC BANK LTD, REP.BY ITS MANAGER LEGAL AND AUTHORIZED OFFICER, SOJIN UNNIKRISHNAN S.L.PLAZA, PALARIVATTOM.

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BY ADV. SRI.T.RAJESH

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RESPONDENT(S):

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1. P.M.JACOB, PERUMCHERIL HOUSE, NEAR GOMATHY JUNCTION, CHINGAVANAOM, KOTTAYAM-686 531.

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2. MOLYKUTTY JACOB, W/O.JACOB PERUMCHERIL HOUSE, NEAR GOMATHY JUNCTION, CHINGAVANAOM, KOTAYAM-686 531.

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BY ADV. SRI.ALEX.M.SCARIA

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 03-09-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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sts

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WP(C)NO.11922/2012

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APPENDIX

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PETITIONER'S EXHIBITS:

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P1 COPY OF THE 13(2) NOTICE ISSUED BY THE PETITIONER ON 20/4/2009

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P2 COPY OF THE REPRESENTATION SUBMITTED THE 1ST RESPONDENT DATED 28/7/2009

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P3 COPY OF THE DECISION ENTERED UPON BY THE AUTHORIZED OFFICER AND COMMUNICATED TO THE RESPONDENT ON 18/8/2009

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P4 COPY OF THE ORDER OF THE CHIEF JUDICIAL MAGISTRATE DATED 20/10/2009

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P5 COPY OF THE ORDER OF THE TRIBUNAL VACATING THE STAY

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P6 COPY OF THE PETITION FILED AS CRIMINAL MISCELLANEOUS PETITION 246 OF 2012 FILED BEFORE THE CHIEF JUDICIAL MAGISTRATE COURT KOTTAYAM ON 25/2/2012

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P7 COPY OF THE PROCEEDINGS DATED 2/4/2012 OF THE CHIEF JUDICIAL MAGISTRATE COURT KOTAYAM ADJOURNING THE MATTER TO 19/5/2012

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RESPONDENT'S EXHIBITS:

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R1(A) COPY OF THE ORDER DATED 27/10/2009 IN SECURITISATION APPLICATION NO.518/09 ON THE FILES OF DEBT RECOVERY TRIBUNAL, ERNAKULAM.

/TRUE COPY/

P.A.TO.JUDGE

sts

ANTONY DOMINIC,J

W.P.(C)No.11922 of 2012

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Dated this the 3^rd day of September, 2012

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JUDGMENT

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Petitioner is a bank. The first respondent availed of a loan with the second respondent as its co-obligant mortgaging certain immovable properties as security for the liability. Default was committed and proceedings under the SARFAESI Act were initiated. Ext.P1 is the notice issued under Section 13(2) of the Act. On receipt of Ext.P1, the first respondent filed Ext.P2 reply and the contentions raised were rejected by Ext.P3 order passed by the Authorized Officer.

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According to the bank, even thereafter, when payments were not made, the bank approached the Chief Judicial Magistrate, Kottayam invoking his powers under Section 14 of the Act. In that application, the learned Magistrate passed Ext.P4 order. At that stage, the respondents filed S.A.No.518/2009 before the Debt Recovery Tribunal. On that application, the Tribunal passed Ext.R1(a) conditional order, which was complied with. Subsequently, the Tribunal passed

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W.P.(C).No.11922/2012

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: 2 :

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another order requiring remittance of a further sum of Rs.1,00,000/-. That was not complied with and therefore, the

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stay order passed by the Tribunal was vacated by Ext.P5 order.

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In view of these developments, the bank again made Ext.P6 application, invoking power under Section 14 of the Act. It appears that the learned Magistrate issued notice to the defaulters and Ext.P7 proceedings of the learned Magistrate show that since notice was not served, the case has been adjourned. It is in these circumstances, the petitioner has approached this Court seeking a direction to the learned Magistrate to pass final orders in the matter without awaiting for service of notice on the defaulters.

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Counter affidavit has been filed by the first respondent, in which, various contentions are raised. However, in the additional affidavit dated 30.07.2012, he has undertaken that he shall pay Rs.5,41,685/-, the overdue amount, before 01.09.2012, to which date Ext.P6 application was posted.

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W.P.(C).No.11922/2012

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: 3 :

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According to the learned counsel for the petitioner, this undertaking also has not been complied with.

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In this writ petition, the grievance of the petitioner is mainly regarding the order passed by the learned Magistrate issuing notice to the respondents in Ext.P6, the application made by them invoking the power of the learned Magistrate under Section 14 of the Act and the consequent delay in passing final orders thereon. The question whether in a proceedings under Section 14, the learned Magistrate is obliged to issue notice to the defaulters has already been settled by this Court in Sindhu v. State of Kerala (2008(2) KLT 736), which was followed in Sosamma Abraham v.

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State Bank of Travancore (2008(2) KLT 965) . In both these judgments, it has been categorically held that the Magistrate is under no obligation to issue notice. In the light of these principles laid down by this Court, there was no obligation on the learned Magistrate to have issued notice and postponed orders on Ext.P6 awaiting service of notice on respondents 2 and 3. In such circumstances, the bank is

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W.P.(C).No.11922/2012

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: 4 :

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justified in seeking the relief sought for in this writ petition.

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For the aforesaid reasons, I dispose of this writ petition directing that if as stated by the petitioner, the defaulters have not paid the overdue amount on or before 01.09.2012 as undertaken by the first respondent in his affidavit dated 30.07.2012, the learned Chief Judicial Magistrate, Kottayam shall pass final orders on Ext.P6(CMP No.246/2012) without any further delay.

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Writ Petition is disposed of as above.

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ANTONY DOMINIC, JUDGE

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Hdfc Bank Ltd. v. P.M.Jacob

Case brief

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Hdfc Bank Ltd. v. P.M.Jacob

Case brief

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