Allowed

Joseph O.J.@ Kunjumon v. Authorised Officer

Kerala HC3 Oct 2016WP(C)/7751/2015

Case brief

AI extract

What is this about?

In this writ petition, the petitioner challenged the appointment of an Advocate Commissioner under Section 14 of the SARFAESI Act. The bank had filed its application without updating the debt amount to reflect subsequent payments, citing this as a violation of the proviso to Section 14(1).

What did the court decide?

The Bank directed to file a corrected affidavit showing the accurate payable amount as on the date of the application; appointment of Advocate Commissioner stayed.

Joseph O.J.@ Kunjumon Vs Authorised Officer — Specific Performance | Kerala HC (2016)

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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 A.M.SHAFFIQUE

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MONDAY, THE 3RD DAY OF OCTOBER 2016/11TH ASWINA, 1938

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WP(C).No. 7751 of 2015 (T)

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PETITIONER(S):

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JOSEPH O.J. @ KUNJUMON, S/O. JOSEPH, RESIDING AT OREETHAYIL HOUSE, MANNARAKAYAM P.O., KOTTAYAM DISTRICT-686 505.

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BY ADVS.SRI.H.HAMZA ROWTHER, SRI.V.K.PEERMOHAMED KHAN.

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RESPONDENT(S):

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AUTHORISED OFFICER, MEENACHIL EAST URBAN CO-OPERATIVE BANK LTD, NO.4266, POONJAR, POONJAR THEKKEKARA P.O., KOTTAYAM-686 582.

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BY ADV. SRI.GEORGEKUTTY MATHEW.

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 03-10-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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rs.

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WP(C).No. 7751 of 2015 (T)

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APPENDIX

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PETITIONER'S EXHIBITS:-

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EXT.P1.	TRUE COPY OF THE DEMAND NOTICE ISSUED BY THE RESPONDENT DATED 30/03/2013.
EXT.P2.	TRUE COPY OF THE RECEIPT DATED 05/11/2013.
EXT.P3.	TRUE COPY OF THE APPLICATION FILED BEFORE THE CJM CURT DATED 05/04/2014.
EXT.P4.	TRUE COPY OF THE OBJECTION FILED BEFORE THE CJM COURT DATED 28/05/2014.
EXT.P5.	TRUE COPY OF THE ORDER PASSED BY THE CJM COURT DATED 18/11/2014.
EXT.P6.	TRUE COPY OF THE NOTICE ISSUED BY THE ADVOCATE COMMISSIONER DATED 11/02/2015.

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RESPONDENT'S EXHIBITS:- NIL.

//TRUE COPY//

P.S. TO JUDGE

rs.

**A.M.SHAFFIQUE, J * * * * * * * * * * * *** W.P.C.No.7751 of 2015

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Dated this the 3^rd day of October 2016

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J U D G M E N T

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Petitioner challenges Ext.P5, an order by which an Advocate Commissioner has been appointed to take possession of the secured assets in terms of Section 14 of the SARFAESI Act (hereinafter referred to as 'the Act'). The main contention urged by the petitioner is violation of proviso (i) to Section 14(1) of the Act by which the Bank was entitled to give the details of the amount payable as on the date of filing the application. Perusal of Ext.P3, an application filed by the Bank before the Chief Judicial Magistrate would indicate the amount payable by the petitioner as on 12/02/2013. According to the petitioner, subsequent to the notice issued under Section 13(2) of the Act, petitioner had remitted Rs.55,000/- in terms of Ext.P2 receipt dated 05/11/2013 which factor has not been incorporated. Section 14(1)(i) of the Act, which has been incorporated by Amendment Act 1 of 2013 with effect from 15/01/2013 reads as under:

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W.P.C.No.7751/2015

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“ 14. Chief Metropolitan Magistrate or District Magistrate to assist secured creditor in taking possession of secured asset.- (1) x x x x

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Provided that any application by the secured creditor shall be accompanied by an affidavit duly affirmed by the authorised officer of the secured creditor, declaring that-

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(i) the aggregate amount of financial assistance granted and the total claim of the Bank as on the date of filing the application;”

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Apparently, the balance amount due as on the date of

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application required to be specified in the application is not borne out by Ext.P3.

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It is contended by the petitioner that counter affidavit has been filed before the Chief Judicial Magistrate mentioning the aforesaid fact, and without considering the same, the Advocate Commissioner has been appointed.

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Counter affidavit has been filed by the respondent inter alia stating that the petitioner availed of vehicle loan of Rs.8,50,000/- on 23/12/2011. He had also availed a business loan on 07/02/2012. The security offered is the vehicle and the property having an extent of 4.05 Ares. It is also stated that the

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W.P.C.No.7751/2015

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encumbrance certificate submitted by the petitioner along with the loan application contains certain corrections and there is some doubt regarding the same. According to them, there is no illegality or infirmity in the proceedings.

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However, in terms of the statutory provision, it is rather clear that the amount payable as on the date of application has to be specified in the application to be filed before the Chief Judicial Magistrate which is lacking in the case. Of course, they have stated the amount payable as on the date of issuance of notice under Section 13(2) of the Act, which is reflected in Ext.P3. Petitioner submits that Rs.55,000/- has been paid subsequently.

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Going by the amount involved in the matter, I do not think that the payment made by the petitioner subsequently would even be enough to satisfy the interest payable on the amount due. At any rate, this omission can only be taken as an irregularity which necessarily requires correction and does not go to the root of the matter in order to exclude the jurisdiction of the Chief Judicial Magistrate to entertain the application.

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In the result, this writ petition is disposed of as under:

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W.P.C.No.7751/2015

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i) Respondent Bank shall file an affidavit before the Chief Judicial Magistrate showing the amount actually payable as on the date of filing the application (Ext.P3) and pursuant to the same, the Chief Judicial Magistrate shall pass appropriate orders in accordance with law.

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ii) Until such time, Ext.P5 shall be kept in abeyance.

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(sd/-)

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(A.M.SHAFFIQUE, JUDGE)

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jsr

Joseph O.J.@ Kunjumon v. Authorised Officer

Case brief

What is this about?

What did the court decide?

Joseph O.J.@ Kunjumon v. Authorised Officer

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

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