The High Court dismissed a petition under Section 482 Cr.P.C. challenging Section 14 SARFAESI proceedings. The Court held such petitions are not maintainable, relying on precedent. It avoided examining affidavit validity and dismissed the plea to entertain the matter under Article 227.
Petition under Section 482 Cr.P.C. is dismissed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
THURSDAY, THE 16TH DAY OF JUNE 2016/26TH JYAISHTA, 1938
Crl.MC.No. 3073 of 2016
C.M.P.NO. 2123/2015 OF CHIEF JUDICIAL MAGISTRATE COURT, KOZHIKODE
PETITIONER(S) :
CHANDRAN V.P,
AGED 63 YEARS, S/O. KUNHIKANNAN, KELOTH MEETHAL HOUSE, PAYYOLI VAZHI, IRRINGATH P.O., KOZHIKODE DISTRICT.
BY ADV. SRI.T.G.RAJENDRAN
RESPONDENT(S)/STATE :
1. BANK OF BARODA, REPRESENTED BY ITS CHIEF MANAGER, MAIN BRANCH, CITY TOWER, I.G.ROAD, KOZHIKODE, NOW FUNCTIONING AT HOLYDAY CITY CENTRE, BANK ROAD, KOZHIKODE-673 001.
2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682 031.
R1 BY ADVS. SRI.K.M.ANEESH
SRI.K.SANTHOSH KUMAR (KALIYANAM) SRI.ADARSH KUMAR SRI.BIJU VARGHESE ABRAHAM SRI.DILEEP CHANDRAN
R2 BY PUBLIC PROSECUTOR SRI. RAJESH VIJAYAN
THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 16-06-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
Msd.
Crl.MC.No. 3073 of 2016
APPENDIX
PETITIONER(S)' ANNEXURES :
| ANNEXURE I | TRUE COPY OF THE COMPLAINT FILED BY THE BANK DATED 23.11.2015. |
|---|---|
| ANNEXURE II | COPY OF THE ORDER OF THE LEARNED CHIEF JUDICIAL MAGISTRATE IN CMP NO.2123/15. |
| ANNEXURE III | COPY OF THE LIST OF DOCUMENTS FILED ON 23.11.2015. |
| ANNEXURE IV | COPY OF THE ORDER PASSED BY THE LEARNED CHIEF JUDICIAL MAGISTRATE, KOZHIKODE IN CMP NO.2123/2015. |
| ANNEXURE V | COPY OF THE APPLICATION FOR CERTIFIED COPY. |
| ANNEXURE VI | COPY OF THE ORDER OF THE CHIEF JUDICIAL MAGISTRATE DATED 26.04.2016. |
| ANNEXURE VII | COPY OF THE JUDGMENT IN W.P(C).NO. 15409/16 OF THIS HON'BLE COURT. |
RESPONDENT(S)' ANNEXURES :
| ANNEXURE R1(A): | TRUE COPY OF THE PETITION FILED BY |
|---|---|
| THE 1ST RESPONDENT BEFORE THE CHIEF JUDICIAL | |
| MAGISTRATE, KOZHIKODE DATED 01.11.2015. |
//TRUE COPY//
P.A.TO JUDGE
Msd.
RAJA VIJAYARAGHAVAN V, J.
-------------------------------------------------------Crl.M.C.No.3073 of 2016
Dated this the 16th day of June, 2016
O R D E R
1.The 1st respondent has initiated proceedings under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act , 2002 ( hereinafter referred to as Act 2 of 2002 ) against the petitioner herein seeking assistance of the Chief Judicial Magistrate Court , Kozhikkode in taking possession of the secured asset. Annexure 1 is the application filed .
2.The petitioner contends that, as per the amended provisions of S.14 of Act 2 of 2002 which has come into force on and from 15-1-2013, the application by the secured creditor should be accompanied by an affidavit duly affirmed by the authorised officer or the secured creditor with specific declaration of the particulars mentioned in sub clauses (i) to (ix) .No such affidavit was
Crl.M.C.No.3073 of 2016 : 2 :
filed before the learned Magistrate , according to the learned Counsel and therefore Annexure 1 cannot be treated as a proper application under S.14 of the Act. It is submitted that Annexure 1 should be quashed on that sole ground.
3.Refuting the contentions of the petitioner, the learned counsel appearing for the respondent No.1 contends that the submission that an affidavit in conformity with the provisions of Act 2 of 2002 was not filed along with Annexure 1 is untenable. Annexure R 1 (a) is produced to contend that an affidavit satisfying the stipulations was filed before the learned Magistrate. It is also submitted that a petition under S.482 of the Cr.P.C is not maintainable under law relying on a judgment of Division Bench of this Court in Radhakrishnan,V.N. Vs. State of Kerala and another[2008(4) ILR 863] . It is urged that the petitioner, during the pendency of Annexure 1 had approached this Court by filing W.P.(C).No.15409/2016
Crl.M.C.No.3073 of 2016 : 3 :
and as per order dated 29.04.2016, this Court had disposed off the petition with directions. After having filed the said writ petition wherein no such challenge was raised and after obtaining reliefs, the petitioner is estopped from raising contentions before this Court in this petition filed under S.482 is the final submission of the learned counsel.
5.In Radhakrishnan,V.N. (supra), a Division Bench of this Court had occasion to hold that a petition under Section 482 of the Code of Criminal Procedure challenging the proceedings of the Magistrate under Section 14 was not maintainable.
Crl.M.C.No.3073 of 2016 : 4 :
submission of the learned Counsel that this Court will be justified in treating this as a petition under Article 227 of the Constitution of India as it is borne out from Annexure VIII , that the petitioner had approached this Court during the pendency of proceedings and had obtained an order to remit the defaulted amount in installments .
Sd/- RAJA VIJAYARAGHAVAN V, JUDGE.
Bb
[True copy]
P.A to Judge
3 issues framed by the court
Whether a petition under Section 482 Cr.P.C. challenging proceedings under Section 14 of the SARFAESI Act is maintainable.
Whether the petitioner can seek invocation of Article 227 power given he approached this Court during pendency.
Whether a lack of affidavit under Section 14 vitiates the application under SARFAESI Act.
Colour shows how this judgement treated each authority
Radhakrishnan, V.N. Vs. State of Kerala and anotherReferred¶36
[2008(4) ILR 863] · Who else cites this
3 provisions across 3 enactments
Chandan V.P
Bank of Baroda
State of Kerala
Raja Vijayaraghavan V
As recorded by the court registry
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