Canara Bank vs Kavith Basavantray Jambugol And Anr
2024 Latest Caselaw 22483 Kant

Karnataka High Court

Canara Bank vs Kavith Basavantray Jambugol And Anr on 4 September, 2024

Author: Suraj Govindaraj

Bench: Suraj Govindaraj

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                                                           NC: 2024:KHC-K:6623
                                                       WP No. 202323 of 2024




                                 IN THE HIGH COURT OF KARNATAKA

                                        KALABURAGI BENCH

                             DATED THIS THE 4TH DAY OF SEPTEMBER, 2024

                                              BEFORE
                           THE HON'BLE MR. JUSTICE SURAJ GOVINDARAJ
                             WRIT PETITION NO.202323 OF 2024 (GM-RES)


                      BETWEEN:
                      CANARA BANK
                      KORAWAR BRANCH
                      TQ. SINDAGI,
                      DIST.VIJAYAPURA 586120
                      REPRESENTED BY ITS AUTHORISED OFFICER
                      NAMELY SRI NIRAJ KUMAR TIWARI
                      S/O HARISHYAM
                      AGE: 38 YEARS,
                      OCC: CHIEF MANAGER-CUM
                      -AUTHORIZED OFFICER

                                                                 ...PETITIONER
                      (BY SRI. HULMANI GIRISH SOMANATH, ADVOCATE)
Digitally signed by
BASALINGAPPA
                      AND:
SHIVARAJ
DHUTTARGAON           1.   MRS. KAVITHA BASAVANTRAY JAMBUGOL
Location: HIGH
COURT OF                   AGE: MAJOR, OCC: BUSINESS
KARNATAKA
                           AT POST KORAWAR
                           TQ. SINDAGI,
                           DIST. VIJAYAPURA-586120.

                      2.   MAHANTAYYA HIREMATH
                           AGE: MAJOR, OCC: BUSINESS
                           AT POST KORAWAR
                           TQ. SINDAGI,
                           DIST.VIJAYAPURA-586120.
                                                               ...RESPONDENTS
                      (NOTICE TO R1 & R2 DISPENSED WITH)
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                                          NC: 2024:KHC-K:6623
                                      WP No. 202323 of 2024




     THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO A)
ISSUE A ORDER / DIRECTION IN THE FORM OF MANDAMUS
DIRECTING   THE    JURISDICTIONAL    CJM   COURT   I.E.
HONOURABLE PRL.SR.CIVIL JUDGE AND CJM, VIJAYAPURA TO
PASS NECESSARY ORDER ON THE APPLICATION FILED U/SEC.
14 OF SARFAESI ACT 2002 IN CRL.MISC.NO.110/2023 ON THE
FILE OF HONOURABLE PRL.SR.CIVIL JUDGE AND CJM,
VIJAYAPURA VIDE ANNEXURE-C AND ETC.,

    THIS PETITION, COMING ON FOR ORDERS, THIS DAY,
ORDER WAS MADE THEREIN AS UNDER:


CORAM:    HON'BLE MR. JUSTICE SURAJ GOVINDARAJ

                    ORAL ORDER

(PER: HON'BLE MR. JUSTICE SURAJ GOVINDARAJ)

1. The petitioner is before this Court seeking for the

following reliefs:

a. Issue a order/direction in the form of mandamus directing the jurisdictional CJM court i.e. Hon'ble Prl.Sr.Civil Judge and CJM, Vijayapura to pass necessary order on the application filed U/sec. 14 of SARFAESI Act 2002 in Crl.Misc.No.110/2023 on the file of Hon'ble Prl.Sr.Civil Judge and CJM, Vijayapura vide Annexure-C.

b. This Hon'ble court may also kindly be pleased to issue necessary direction or order or necessary guidelines to the implementing or enforcing authorities or agencies or forums to implement the recover proceedings under SARFAESI Act 2002 in the specified time bound manner.

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c. Any other order which deems fits in the facts and circumstances of the case, in the interest of justice and equity.

2. In view of the proposed order to be passed, notice to

respondents is dispensed with.

3. The grievance of the petitioner is that though the

Criminal Miscellaneous No.110/2023 had been heard

and the matter was posted for judgment on

14.03.2024, no judgment has been passed till date.

The said submission is borne out on a perusal of

Annexure-C being the order sheet of the said Court.

4. The petition having been filed in the year 2023 under

Section 14 (1) of the SARFAESI Act, it is required for

the Court to pass necessary orders as expeditiously

as possible. Section 14 of the SARFAESI Act is

reproduced hereunder:

"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

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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 asset and documents to the secured creditor.

[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-

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

(ii) the borrower has created security interest over various properties and that the Bank or Financial Institution is holding a valid and subsisting security interest over such properties and the claim of the Bank or Financial Institution is within the limitation period;

(iii) the borrower has created security interest over various properties giving the details of properties referred to in sub-clause (ii) above.

(iv) the borrower has committed default in repayment of the financial assistance granted aggregating the specified amount;

(v) consequent upon such default in repayment of the financial assistance the account of the

NC: 2024:KHC-K:6623

borrower has been classified as a nonperforming asset;

(vi) affirming that the period of sixty days notice as required by the provisions of sub-

section (2) of section 13, demanding payment of the defaulted financial assistance has been served on the borrower;

(vii) the objection or representation in reply to the notice received from the borrower has been considered by the secured creditor and reasons for non-acceptance of such objection or representation had been communicated to the borrower;

(viii) the borrower has not made any repayment of the financial assistance in spite of the above notice and the Authorised Officer is, therefore, entitled to take possession of the secl1red assets under the provisions of sub- section (4) of section 13 read with section 14 of the principal Act;

(ix) that the provisions of this Act and the rules made thereunder had been complied with:

Provided further that on receipt of the affidavit from the Authorised Officer, the District Magistrate or the Chief Metropolitan Magistrate, as the case may be, shall after satisfying the contents of the affidavit pass suitable orders for the purpose of taking possession of the secured assets [within a period of thirty days from the date of application.] [Provided also that if no order is passed by the Chief Metropolitan Magistrate or District Magistrate within the said period of thirty days for reasons beyond his control, he may, after recording reasons in writing for the same, pass the order within such further period but not exceeding in aggregate sixty days.]

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Provided also that the requirement of filing affidavit stated in the first proviso shall not apply to proceeding pending before any District Magistrate or the Chief Metropolitan Magistrate, as the case may be, on the date of commencement of this Act.

(1A) [The District Magistrate or the Chief Metropolitan Magistrate may authorise any officer subordinate to him,-

(i) to take possession of such assets and documents relating thereto; and

(ii) to forward such assets and documents to the secured creditor.] (2) For the purpose of securing compliance with the provisions of sub-section (1), the Chief Metropolitan Magistrate or the District Magistrate may take or cause to be taken such steps and use, or cause to be used, such force, as may, in his opinion, be necessary. (3) No act of the Chief Metropolitan Magistrate or the District Magistrate done in pursuance of this section shall be called in question in any Court or before any authority."

5. A perusal of the said provision would indicate that

orders should have been passed within 60 days from

the date of filing. In the present case, the petition

has been kept pending for nearly a year, in that view

of the matter, I pass the following:

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ORDER

i. Writ petition is allowed.

ii. A mandamus is issued directing the Principal Senior Civil Judge and CJM Vijayapura to pass necessary orders in Criminal Miscellaneous No.110/2023 at the earliest, as expeditiously as possible, preferably within a period of 30 days from the date of receipt of a copy of this order.

iii. It is made clear that this Court has not expressed any opinion on the merits of the matter and it is for the said Court to decide the same on merits.

Sd/-

(SURAJ GOVINDARAJ) JUDGE

VNR