Madras High Court
R.Bhuvaneshwari vs The Chief Judicial Magistrate on 1 July, 2024
Author: S.S. Sundar
Bench: S.S. Sundar
W.P.No.5125 of 2024
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 01.07.2024
CORAM :
THE HONOURABLE MR. JUSTICE S.S. SUNDAR
AND
THE HONOURABLE MR. JUSTICE N. SENTHILKUMAR
W.P.No.5125 of 2024
and
W.M.P.No.5638 of 2024
R.Bhuvaneshwari ... Petitioner
Vs.
1.The Chief Judicial Magistrate,
Coimbatore.
2.M/s.Canara Bank,
Represented by its Authorized Officer,
No.5/4, 1st Floor, RVR Building,
Head Quarters Road,
Coimbatore – 641 018.
3.Mr.L.Thirumurugesan,
Advocate Commissioner,
MS No.3702/2019,
Combined Court Complex,
Coimbatore.
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W.P.No.5125 of 2024
4.The Inspector of Police,
M-6 Koilpalayam Police Station,
Sathy Road,
Sarkarsamakulam,
Coimbatore – 641 107.
5.V.Arun ... Respondents
[R5 impleaded as respondent vide order dated 01.07.2024
in WMP No.16062 of 2024 in W.P.No.5125 of 2024]
Prayer : Writ Petition filed under Article 226 of the Constitution of India for
issuance of a Writ of Mandamus forbearing the respondents, more
particularly, the 2nd and 3rd respondents from continuing any actions
pursuant to order of the 1st respondent dated 09.06.2023 in
Crl.M.P.No.14576 of 2023.
For Petitioner : Mr.B.Sathish Sundar
R1 : Court
For R2 : Mr.M.A.Abdul Wahab
for M/s.K.V.Subramanian Associates
For R4 : Mr.R.Muniyapparaj
Additional Public Prosecutor
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W.P.No.5125 of 2024
For R5 : Mr.V.Janarthanan
R3 : Tapal returned (insufficient address)
ORDER
(Order of the Court was made by S.S. SUNDAR, J.)
This writ petition is filed for issuance of a Writ of Mandamus
forbearing the respondents, more particularly, the 2nd and 3rd respondents,
from continuing with any action pursuant to order of the 1st respondent,
dated 09.06.2023, in Crl.M.P.No.14576 of 2023.
2.The limited scope of this writ petition is whether the warrant issued
by the Chief Judicial Magistrate is still enforceable after the lapse of time
limit specified in the order of the Chief Judicial Magistrate in the application
filed under Section 14 of the SARFAESI Act.
3.The petitioner is a guarantor to the loan availed by one M/s.Ganesh
Builders, the borrower. The loan account was classified as NPA by the
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Bank. It is not in dispute that, after issuing notice under Section 13 of the
SARFAESI Act, the Bank had initiated proceedings for sale of the property
of petitioner by issuing a e-auction notice on 05.12.2022. The Bank filed an
application for recovery of money in O.A.No.14 of 2022 before the Debt
Recovery Tribunal, Coimbatore. One of the guarantors filed a securitization
application under Section 17 of the SARFAESI Act before the Debt Recovery
Tribunal, Coimbatore, which is pending in S.A.No.13 of 2023. Though a
conditional order was passed directing the petitioner in S.A.No.13 of 2023
to pay a sum of Rs.90 Lakhs on or before 17.02.2023, it is admitted that,
due to non-compliance of the condition, the Bank proceeded with e-
auction of all the properties including the properties of the petitioner. It is
also admitted that the sale in favour of the purchaser was confirmed by
Bank and a Sale Certificate was also issued by the Authorised Officers. It is
in the said circumstances, the petitioner herein filed O.A.No.145 of 2023 for
declaration that the sale conducted in respect of the petitioner's properties as
null and void with a further prayer to set aside the sale dated 20.01.2023. In
the said circumstances, the Bank filed an application under Section 14 of the
SARFAESI Act before the Chief Judicial Magistrate, Coimbatore, in
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Crl.M.P.No.14576 of 2023. The Criminal Miscellaneous Petition was
allowed by order dated 09.06.2023 by appointing an Advocate
Commissioner, and by directing the Advocate Commissioner, upon receipt of
payment of fee, to execute the warrant within a period of 30 days from the
date of receipt of the warrant. It is now admitted that the warrant issued by
the learned Chief Judicial Magistrate was not executed as directed in the
order. It is in the said circumstances, the petitioner has filed the above writ
petition forbearing the respondents from taking any steps to execute the
warrant.
4.Learned counsel appearing for the petitioner relied upon a judgment
of the High Court of Andhra Pradesh in Mangalagiri Textile Mills Private
Limited and another v. State Bank of India and another reported in 2022
SCC Online AP 525, wherein the question whether the property, for which
possession was sought before the Chief Judicial Magistrate, can be taken
over under the same warrant even if the time specified in the warrant had
lapsed, was considered. The High Court of Andhra Pradesh has
categorically held that, once time specified in the warrant elapsed, the
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possession of property in question cannot be taken over under the same
warrant.
5.Even though the learned counsel appearing for the petitioner raised
several other grounds, he has confined his arguments only questioning any
attempt that may be pursuant to the earlier warrant issued by the learned
Chief Judicial Magistrate which was not executed within the time. Learned
counsel appearing for the respondents, though seriously contested this writ
petition on merits, have no objection if this Court directs the Chief Judicial
Magistrate to issue fresh warrant of Commission so that the application filed
by the respondent Bank under Section 14 of the Act will have its logical end.
The learned counsel for the petitioner has no grievance if such order is
passed.
6.Considering the facts and circumstances of the case, this writ
petition is disposed of with a direction to the 1st respondent to issue a fresh
warrant of Commission to execute the order of the learned Chief Judicial
Magistrate, Coimbatore, dated 09.06.2023, made in Crl.M.P.No.14576 of
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2023, without prejudice to the right of petitioner in another writ petition
stated to have been filed by the petitioner in W.P.No.34825 of 2023
challenging the sale on the ground of fraud. No costs. Consequently,
connected miscellaneous petition is closed.
(S.S.S.R., J.) (N.S., J.)
01.07.2024
Note to Registry :
Issue order copy on 03.07.2024.
mkn
Internet : Yes
Index : Yes / No
Neutral Citation : Yes / No
To
1.The Chief Judicial Magistrate,
Coimbatore.
2.The Inspector of Police,
M-6 Koilpalayam Police Station,
Sathy Road,
Sarkarsamakulam,
Coimbatore – 641 107.
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S.S. SUNDAR, J.
and
N. SENTHILKUMAR, J.
mkn
01.07.2024
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