IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE P.UBAID MONDAY, THE27H DAY OF OCTOBER20145TH KARTHIKA, 1936 OP(Crl.).No. 141 of 2014 (Q) ----------------------------- AGAINST THE ORDER
IN CMP9032014 of CHIEF JUDL.MAGISTRATE, ERNAKULAM PETITIONER/2ND RESPONDENT (S): ---------------------------------------- SHIBU GEORGE AGED47YEARS S/O.GEORGE, THAMARACHALIL HOUSE, JANATHA ROAD VYTTILA, KOCHI. BY ADV. SRI.P.V.GEORGE(PUTHIYIDAM) RESPONDENTS/STATE & PETITIONER: ------------------------------------------ 1. STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM - 682 031.
2. STATE BANK OF TRAVANCORE STRESSED ASSETS RESOLUTION CENTRE ZONAL OFFICE ERNAKULAM REPRESENTED BY ITS CHIEF MANAGER682016 R1 BY GOVERNMENT PLEADER SMT.P.MAYA R2 BY ADV. SRI.SATHISH NINAN R2 BY SRI.SANTHOSH MATHEW THIS OP (CRIMINAL) HAVING COME UP FOR ADMISSION ON2710-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP(Crl.).No. 141 of 2014 (Q) ----------------------------- APPENDIX PETITIONER(S)' EXHIBITS ------------------------------ EXT.P1 - TRUE COPY OF THE CMP NO.903/14 DATED212-2014 ON THE FILE OF THE CHIEF JUDICIAL MAGISTRATE COURT ERNAKULAM. EXT.P2 - TRUE COPY OF THE OBJECTION DATED242-2014 IN CMP NO.903/14 ON THE FILE OF THE CHIEF JUDICIAL MAGISTRATE COURT ERNAKULAM EXT.P3 - TRUE COPY OF THE ADDITIONAL AFFIDAVIT DATED24-2014 OF THE2D RESPONDENT IN CMP NO.903/14 ON THE FILE OF THE CHIEF JUDICIAL MAGISTRATE COURT ERNAKULAM EXT.P4 - TRUE COPY OF THE AFFIDAVIT DATED265-2014 IN CMP NO.903/14 ON THE FILE OF THE CHIEF JUDICIAL MAGISTRATE COURT ERNAKULAM. EXT.P5 - TRUE COPY OF THE ORDER
DATED37-2014 PASSED BY THE CHIEF JUDICIAL MAGISTRATE COURT ERNAKULAM IN CMP NO.903/2014 RESPONDENT(S)' EXHIBITS ------------------------------- EXT.R2 (1): TRUE COPY OF THE TRANSFER ORDER
DATED35.2014 ISSUED IN FAVOUR OF RAJAGOPALAN T.P, THE DEPONENT HEREIN EXT.R2 (2): TRUE COPY OF THE NOTIFICATION20H SEPTEMBER, 2002 PUBLISHED IN THE GAZETTE OF INDIA EXTRAORDINARY BY THE MINISTRY OF FINANCE AND COMPANY AFFAIRS. /TRUE COPY/ P.S TO JUDGE P.UBAID, J.
~~~~~~~~~~ O.P. (Crl) No.141 of 2014 ~~~~~~~~~~~ Dated this the 27th October, 2014
JUDGMENT
The petitioner herein is aggrieved by an order passed by the learned Chief Judicial Magistrate, Ernakulam under Section 14 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 ((SARFAESI Act -for short 'the Act') on the application made by the State Bank of Travancore as a secured creditor. As per the impugned order, the learned Chief Judicial Magistrate found that the secured creditor is entitled to get order to take possession of the secured assets with the assistance of the court. The said order dated 3.7.2014 is challenged on the ground that necessary affidavit as required under the first proviso to Section 14 (1) of the Act was not filed by the Bank before the learned Magistrate.
2. On hearing both sides, I find that the rights of the Bank cannot be defeated forever on the ground that the Bank failed to file a proper affidavit. This is not a case O.P. (Crl) No.141 of 2014 2 where no affidavit was filed by the Bank. Ext.P4 is the copy of the affidavit filed by the Bank along with the application made under Section 14 of the Act. The first proviso to Section 14 (1) of the Act introduced in 2013 provides that any application made by the secured creditor for assistance of the court under Section 14 (1) of the Act shall be accompanied by an affidavit duly affirmed by the authorised officer of the secured creditor, declaring so many aspects enumerated in clauses (i) to (ix) appended to the proviso. The grievance of the petitioner herein is that the affidavit filed by the petitioner is not one as meant under the proviso. The learned counsel relies on a decision of this Court and also another decision of the Hon'ble Supreme Court. In Housing Development Finance Corporation Ltd v. Government of Kerala [ 2013 (3) KLT366, this Court held that the requirement of affidavit duly affirmed by the authorised officer of the secured creditor, as insisted under the first proviso, is mandatory. In Standard Chartered Bank v. Noble Kumar [2013 (4) KLT531(SC)], the Hon'ble Supreme Court observed that affidavit containing the required declarations is in fact necessary for the learned O.P. (Crl) No.141 of 2014 3 Magistrate to take decision on an application brought by the secured creditor under Section 14 (1) of the Act.
3. As already observed, this is not a case where no affidavit was filed by the secured creditor. There is already an affidavit, but it does not contain all the necessary details. On the said ground, the right of the Bank as a secured creditor cannot be defeated. The Bank will have to be granted an opportunity to file a proper affidavit as required under the proviso to Section 14 (1) of the Act. If such opportunity is not granted to the Bank, and if the order happened to be set aside for ever, it will amount to total denial of the rights of the secured creditor. What is contained in the proviso is a mandatory requirement providing necessary details for the consideration of the learned Magistrate for the purpose of adjudicating an application brought under Section 14 (1) of the Act. If such an affidavit is not filed along with the application, the court can permit the secured creditor to file a proper affidavit before final decision is taken on the application brought under Section 14 (1) of the Act. Failure to file affidavit along with the application cannot be taken as a very serious O.P. (Crl) No.141 of 2014 4 procedural infirmity because the object of the said affidavit is to provide necessary materials to the Magistrate for taking appropriate decision on the application. It will suffice that such an affidavit containing all the necessary details is submitted by the secured creditor before the learned Magistrate proceeds to adjudicate and take decision. Thus, I find that an opportunity can be granted to the bank in this case to file a proper affidavit as required under the first proviso to Section 14 (1) of the Act. In the result, the impugned order passed by the learned Chief Judicial Magistrate, Ernakulam is set aside and the matter is remanded to the learned Magistrate for passing orders afresh after granting reasonable opportunity to the secured creditor to file a proper affidavit as meant and required under the first proviso to Section 14 (1) of the Act. Sd/- P.UBAID JUDGE ma /True copy/ P.S to Judge