Kerala High Court
Mini @ Mariyamma Varghese vs State Bank Of India on 12 April, 2023
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS
WEDNESDAY, THE 12TH DAY OF APRIL 2023 / 22ND CHAITHRA, 1945
OP(CRL.) NO. 337 OF 2023
AGAINST THE ORDER/JUDGMENT MC 178/2022 OF CHIEF JUDICIAL
MAGISTRATE ,KOLLAM
PETITIONER/AGGRIEVED PARTY NOT IN PARTY ARRAY IN MC:
MINI @ MARIYAMMA VARGHESE
AGED 51 YEARS
DAUGHTER OF LATE MR. K.T. VARGHESE AND WIFE OF MR.
BINU. T. BABY, RESIDING AT THEKKEDATHU VEETTIL,
MAROOR, PATHANAPURAM (PO) ENADIMANGALAM VILLAGE,
ADOOR TALUK, KOLLAM, PIN - 689 695
BY ADVS.
SHAJI CHIRAYATH
JIJI M. VARKEY
M.K.SAFEELA BEEVI
M.M.SHAJAHAN
SIMSAR UL HAQ K.Y
ANN MARY.V.I
RESPONDENTS/PETITIONER & RESPONDENTS IN CRL.M.P:
1 STATE BANK OF INDIA
STRESSED ASSETS RECOVERY BRANCH (SARB),
LMS COMPOUND, OPPOSITE MUSEUM WEST GATE,
VIKAS BHAVANA (PO), THIRUVANANTHAPURAM PIN -
695033 REPRESENTED BY ITS AUTHORISED OFFICER,
CHIEF MANAGER.
2 MATHEW VARGHESE, AGED 48 YEARS
SON OF LATE MR. K.T THOMAS,
RESIDING AT KAVUMKOTTU HOUSE,
K KULATHUPUZHA (PO), PATHANPURAM,
KOLLAM DISTRICT, PIN - 691 310.
3 MARIYAMMA VARGHESE, AGED 80 YEARS
WIFE OF LATE MR. K.T THOMAS,
RESIDING AT KAVUMKOTTU HOUSE,
K KULATHUPUZHA (PO), PATHANPURAM,
KOLLAM DISTRICT, PIN - 691 310.
4 BOSE VARUGHESE, AGED 56 YEARS
SON OF LATE MR. K.T THOMAS, BRITISH CITIZEN
RELINQUISHED INDIA CITIZENSHIP
RESIDENCE ADDRESS DOES NOT KNOW THE PETITIONER
OP(CRL.) 337/2023
2
5 BINCY BOSE, AGED 45 YEARS
WIFE OF MR. BOSE VARUGHESE, BRITISH CITIZEN
RELINQUISHED INDIA CITIZENSHIP RESIDENCE ADDRESS
DOES NOT KNOW THE PETITIONER
6 STATE OF KERALA,
REPRESENTED BY ITS PUBLIC PROSECUTOR,
HIGH COURT OF KERALA,
ERNAKULAM DISTRICT- 682 031.
BY ADV SHRI.JITHESH MENON, SC, SBI
THIS OP (CRIMINAL) HAVING COME UP FOR ADMISSION ON
12.04.2023, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
OP(CRL.) 337/2023
3
BECHU KURIAN THOMAS, J
...........................................
O.P.(Crl) No.337 of 2023
.....................................
Dated this the 12th day of April, 2023
JUDGMENT
Petitioner challenges an order of the Chief Judicial Magistrate,
Kollam, issued in exercise of the powers under Section 14 of
the Securitization and Reconstruction of Financial Assets and
Enforcement of Security Interest Act, 2002 [for short, the
SARFAESI Act].
2. Sri.Tom K.Thomas, the learned Standing counsel for the
respondent-Bank submitted that this petition is not maintainable
since the remedy if any, for the petitioner is to approach the
Debts Recovery Tribunal, under Section 17 of the SARFAESI
Act.
3. On a consideration of the submissions by the learned counsel
for both sides, it is noticed that the jurisdiction of the learned
Magistrate under Section 14 of the SARFAESI Act, is not in
exercise of his authority as a criminal court. An order under
Section 14 of SARFAESI Act, is in exercise of a purely
OP(CRL.) 337/2023
ministerial function (see the decision in M/s.R.D.Jain & Co. v.
Capital First Ltd. And Others (2023) 1 SCC 675) which is even
appealable under Section 17 of SARFAESI Act. Notwithstanding
the appellate remedies, if petitioner wants to challenge the
steps initiated under Section 14 of the SARFAESI Act, that too
under Article 227 of the Constitution of India, the nomenclature
of the writ petition can only be as "Writ Petition (Civil)", and
not as O.P.(Crl). Of course, the maintainability of even such a
writ petition is subject to the decision and discretion of the
court.
4. Reserving the liberty of the petitioner to move the appropriate
court in the appropriate manner, this original petition is
dismissed as not maintainable.
sd/-
BECHU KURIAN THOMAS
JUDGE
AMV/12/04/2023
OP(CRL.) 337/2023
APPENDIX OF OP(CRL.) 337/2023
PETITIONER EXHIBITS
EXHIBIT P1 COPY OF MISCELLANEOUS CASE NO. 178 OF
2022 DATED 03RD APRIL 2020 FILED BY MR.
BENOY BAL, ADVOCATE BEFORE THE CHIEF
JUDICIAL MAGISTRATE, KOLLAM
EXHIBIT P2 COPY OF THE AFFIDAVIT DATED 3RD AUGUST
2020 FILED BY MS. ALCINA NETTICADAN,
THE CHIEF MANAGER IN CRIMINAL
MISCELLANEOUS PETITION NO. 178 OF 2022
ON THE FILES OF THE CHIEF JUDICIAL
MAGISTRATE, KOLLAM
EXHIBIT P3 COPY OF THE HYPOTHECATION CUM WORKING
CAPITAL AGREEMENT DATED 18TH SEPTEMBER
IN 2009
EXHIBIT P4 COPY OF THE SAID SUPPLEMENTARY
HYPOTHECATION CUM WORKING CAPITAL
AGREEMENT DATED 12TH JULY 2011
EXHIBIT P5 COPY OF THE SUPPLEMENTARY HYPOTHECATION
CUM WORKING CAPITAL AGREEMENT DATED
25TH JULY 2013
EXHIBIT P6 COPY OF THE SUPPLEMENTARY HYPOTHECATION
CUM WORKING CAPITAL AGREEMENT DATED
15TH JANUARY 2015
EXHIBIT P7 COPY OF THE RELEVANT PAGE OF THE
PASSPORT ISSUED TO THE 3RD RESPONDENT
DATED 19TH DECEMBER 2013 ISSUED BY
CITIZENS OF UNITED KINGDOM OF GREAT
BRITAIN AND NORTHERN IRELAND
EXHIBIT P8 AGREEMENT OF LOAN DATED 29TH APRIL 2016
EXHIBIT P9 COPY OF THE RESERVE BANK OF INDIA
NOTIFICATION RBI/2007-08/119;
DBOD.NO.LEG.BC. 28 /09.07.005/2007-08
DATED 22ND AUGUST 2007
EXHIBIT P10 COPY OF THE SAID GUARANTEE AGREEMENT
DATED 18TH SEPTEMBER 2009
EXHIBIT P11 COPY OF THE PARTITION DEED NO. 708 OF
2006 DATED 29TH JUNE 2006 ON THE FILES
OF SUB REGISTRY OFFICE, KULATHUPUZHA
EXHIBIT P12 COPY OF THE SAID RECTIFICATION DEED NO.
761 OF 2006 DATED 12TH JULY 2006 ON THE
FILES OF SUB REGISTRY OFFICE,
KULATHUPUZHA
OP(CRL.) 337/2023
EXHIBIT P13 COPY OF THE ORDER DATED 24TH JUNE 2022
IN MISCELLANEOUS CASE NO. 178 OF 2022
ON THE FILES OF THE CHIEF JUDICIAL
MAGISTRATE
EXHIBIT P14 COPY OF THE SALE DEED NO. 709 OF 2006
DATED 29TH JUNE 2006 ON THE FILES OF
SUB REGISTRY OFFICE, KULATHUPUZHA
TRUE COPY
