Dismissed

Aniyan Koshy v. State of Kerala

Kerala HC11 Jun 2019Crl.MC/1081/2018

Case brief

AI extract

What is this about?

In this criminal miscellaneous case, the petitioner sought to quash the Punjab National Bank's petition for possession of secured assets under Section 14 of the SARFAESI Act. The court dismissed the petition, holding that a fresh application can be filed despite prior dismissal and that relief is available under Section 17 rather than Section 482 of Cr.P.C.

What did the court decide?

Petition under Section 482 Cr.P.C. seeking to quash the Bank's petition for possession was dismissed.

Aniyan Koshy Vs State of Kerala — Cheque Dishonour | Kerala HC (2019)

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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 RAJA VIJAYARAGHAVAN V

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TUESDAY, THE 11TH DAY OF JUNE 2019 / 21ST JYAISHTA, 1941

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CRL.MC.NO. 1081 OF 2018

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AGAINST MC NO.798/2016 ON THE FILE OF THE CHIEF JUDICIAL MAGISTRATE COURT, THIRUVANANTHAPURAM.

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PETITIONER/1ST RESPONDENT :

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ANIYAN KOSHY, AGED 49, S/O LATE G.KUNJU KOSHY, MANAGING PARTNER, RAMANUJAM KNOWLEDGE INDUSTRIES, PAITHRKAM, JAGATHY, THIRUVANANTHAPURAM-695 014.

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BY ADVS.

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SRI.K.C.ELDHO SRI.ANEESH JAMES SRI.JIJO THOMAS SRI.MALLEENATHAN.M.

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RESPONDENTS/STATE, PETITIONER & 2ND RESPONDENT :

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1 STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA.

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2 PUNJAB NATIONAL BANK, RAILWAY STATION ROAD BRANCH, THIRUVANANTHAPURAM- 695 011, REPRESENTED BY ITS AUTHORISED OFFICER.

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3 SIMILIYA, AGED 54, W/O SAHARUDEEN, ZAKKIR MANZIL, KAPPIL P.O., EDAVA, VARKALA, THIRUVANANTHAPURAM- 695 311.

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BY ADV. SRI.SANTHEEP ANKARATH, S.C., PUNJAB NATIONAL BANK

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SRI RAMESH CHAND, PUBLIC PROSECUTOR

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THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 11.06.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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CRL.MC.NO. 1081 OF 2018

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ORDER

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The Punjab National Bank, through its authorised officer, filed a petition before the Chief Judicial Magistrate Court, Thiruvananthapuram under Section 14 of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (for short, the ‘SARFAESI Act’) seeking assistance in taking possession of the secured assets. The petitioner seeks to quash the above petition invoking the powers of this Court under Section 482 of the Cr.P.C.

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The facts indispensable for deciding the issues raised portray that the petitioner had availed a cash credit facility from the 2^nd respondent Bank and the 3^rd respondent stood as the guarantor. Default was committed and consequently, proceedings were initiated under the SARFAESI Act by the 2^nd respondent. A petition was filed under Section 14 of the Act before the Chief Judicial Magistrate.

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According to the petitioner, the 2^nd respondent had approached the learned Chief Judicial Magistrate earlier seeking the very same relief and the said petition was dismissed for non prosecution on 6.4.2016. According to the learned counsel, the

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CRL.MC.NO. 1081 OF 2018 3

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learned Magistrate had violated the provisions of Section 14(1) in as much as the affidavit filed in support of the said petition did not contain the requisite details as contemplated under the Act.

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Heard the learned counsel appearing for the respondent Bank, who contended that the dismissal of the earlier application for default will not preclude the Bank from approaching the learned Magistrate seeking relief under the Act. It is further submitted that the affidavit filed by the Bank contains the requisite details and no interference is warranted.

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I have considered the submissions advanced. The records reveal that the 3^rd respondent had approached this Court seeking time to remit the defaulted installments. The 2^nd respondent had also approached the Debt Recovery Tribunal seeking relief and the same was also rejected. Pursuant to the same, the 2^nd respondent had approached this Court to defer the taking of possession by the commissioner appointed by the learned Magistrate. Certain peremptory directions were also issued by this Court. It is apparent that none of those directions were complied with.

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I am unable to accept the submission that a fresh application for assistance under Section 14 of the Act cannot be

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CRL.MC.NO. 1081 OF 2018 4

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sustained after the earlier application was dismissed for default. Furthermore, Annexure-A4 application for assistance filed before the learned Magistrate contains the declarations as mandated under the proviso to Section 14(1) of the Act.

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It is by now settled that the Chief Judicial Magistrate is not required to perform any judicial function when an application under Section 14 is filed before him. As held by this Court in Roshan Narayanan v. Authorized officer, Central Bank of India and Another [2017 (3) KHC 617] each of the measures commencing with the issuance of any notice under Rule 8 (2), including the stages of approaching the Magistrate, obtaining an order from him, issuance of a notice by the Advocate Commissioner, and culminating with the taking of actual physical possession of the secured asset would give rise to a cause of action to approach the DRT through an application under Section 17 of the SARFAESI Act.

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Furthermore in Kaniyalal Lalchand Sachdev and others v. State of Maharashtra and Others [2011 (2) SCC 782] it was held by the Hon’ble Supreme Court in paragraph No.22 of the report as follows:

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“22. We are in respectful agreement with the above enunciation of law on the point. It is

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CRL.MC.NO. 1081 OF 2018 5

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manifest that an action under Section 14 of the Act constitutes an action taken after the stage of Section 13(4) and, therefore, the same would fall within the ambit of Section 17(1) of the Act. Thus, the act itself contemplates an efficacious remedy for the borrower or any person affected by an action under Section 13(4) of the Act, by providing for an appeal before the DRT.”

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In view of the above, I find no reason to entertain this petition under Section 482 of the Cr.P.C. This petition will stand dismissed.

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SD/- RAJA VIJAYARAGHAVAN V., JUDGE

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//TRUE COPY// P.A. TO JUDGE

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CRL.MC.NO. 1081 OF 2018

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APPENDIX

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PETITIONER(S) ANNEXURES :

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ANNEXURE A1	A TRUE COPY OF THE JUDGMENT DATED 22-11-2013 IN WPC NO.28309 OF 2013 OF THIS HON'BLE COURT.
ANNEXURE A2	A TRUE COPY OF THE STATEMENT OF ACCOUNTS OF THE PETITIONER WITH THE 2ND RESPONDENT BANK FOR THE PERIOD 14-08-2012 TO 28-04-2015.
ANNEXURE A2(a)	A TRUE OF THE RECEIPT DATED 12-06-2015.
ANNEXUREA A2(b)	A TRUE COPY OF THE RECEIPT DATED 21-07-2015.
ANNEXURE A2(c)	A TRUE COPY OF THE RECEIPT DATED 22-08-2015.
ANNEXURE A3	A TRUE COPY OF ORDER DATED 06-04-2016 IN M.C NO.190 OF 2014 OF THE CHIEF JUDICIAL MAGISTRATE COURT, THIRUVANANTHAPURAM.
ANNEXURE A4	CERTIFIED COPY OF M.C. NO.798 OF 2016 ON THE FILE OF THE CHIEF JUDICIAL MAGISTRATE COURT, THIRUVANANTHAPURAM.
ANNEXUREA 5	A TRUE COPY OF OBJECTION FILED BY THE PETITIONER TO ANNEXURE A4.
ANNEXUREA A6	CERTIFIED COPY OF THE ORDER DATED 03-02-2018 OF THE CHIEF JUDICIAL MAGISTRATE COURT, THIRUVANANTHAPURAM IN M.C NO.798 OF 2016.
ANNEXUREA A7	A TRUE COPY OF THE NOTICE DATED 29.05.2019.
ANNEXUREA A8	A TRUE COPY OF THE ORDER OF THE RESERVE BANK IN THE MATTER OF SECURITISATION.
ANNEXUREA A9	A TRUE COPY OF THE ORDER OF THE HON'BLE SUPREME COURT IN SLP NO.4657 OF 2019.
RESPONDENT(S) ANNE	XURES : NIL

Aniyan Koshy v. State of Kerala

Case brief

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Aniyan Koshy v. State of Kerala

Case brief

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