VIJAYAKUMARI. R. Vs. STATE OF KERALA

JUDGEMENT

(1.) THIS is an application filed by the petitioner who is the borrowerer and respondent in Crl.M.P.No.189/2014 before the Chief Judicial Magistrate Court, Kozhikode challenging that order under section 482 of Code of Criminal Procedure.

(2.) IT is alleged in the petition that, petitioner is the first respondent in Crl.M.P.No.189/2014, pending before the Chief Judicial Magistrate Court, Kozhikode, and the second respondent herein filed a petition under section 14(1) of the SARFAESI Act for enforcing the security given by the petitioner for a loan. The petitioner is a practising lawyer and her husband is suffering from throat cancer and son is a student. The bank issued Annexure -5 section 13 notice dated 22.2.2008, but according to the petitioner it was cancelled and withdrawn by Annexure -A9, the award passed by the Adalath. Suppressing this fact bank filed application under section 14 (1) of the Act and the learned Magistrate passed Annexure -A2 order, and appointed a commissioner to take vacant possession and handover the same to the bank and the Advocate commissioner issued Annexure -3 notice. According to the petitioner, the action of the bank was challenged before the Debt Recovery Tribunal as SLA.No.75/2010 and the matter was referred to Adalath and in the Adalath the matter was settled and on that basis the Debt Recovery Tribunal case was closed. But the amount could not be paid. So the bank filed the present petition and the order was obtained. According to the petitioner, the order passed by the Magistrate is not in accordance with law and the same liable to be quashed and so the petitioner filed the present petition seeking the following relief: -

(3.) IT may be mentioned here, that the SARFAESI Act itself was enacted for the purpose of enforcing the security without intervention of the court, when default was committed by the borrower even after giving them time to pay the amount by sending notice under section 13(2) of the Act. It may also be mentioned here that further section 13(8) of the Act provides further opportunity for the debtor to pay of the amount even after taking possession but before the sale of the property by the creditor. That only indicates that the Act wants to protect the interest of both the creditor as well as borrower before the secured property has been put to sale ultimately, if the borrower did not pay the amount. The matter was settled in the Adalath and the petitioner had undertaken to pay of the amount and in the award passed by the Adalath it was specifically mentioned that if any default was committed even without following the procedure prescribed under the Act and without sending further notice, the bank is entitled to proceed with the matter under section 14(1) of the Act. So it was on that basis after issuing another notice that the present petition was filed. However, considering the fact that the petitioner is a lady and a practising lawyer living with her husband suffering from cancer and to look after her son who is the student, this court feels that two months time asked for by the petitioner for clear the debt appears to be reasonable and this court feels that the time asked for by the petitioner can be granted and during that time the proceedings of the Chief Judicial Magistrate can be kept in abeyance. Accordingly two months from today is granted to the petitioner to pay of the liability to the bank and get the property released from the bank But if the petitioner did not pay of the amount within the time specified, then the bank is entitled to proceed with the proceedings in Crl.M.P.No.189/2014 pending before the Chief Judicial Magistrate Court, Kozhikode from the stage in which it was stopped by this court by virtue of this order and the petitioner is stopped from raising any further contention to protract the matter and obstruct the possession of the property being taken by the bank. If the amount is not paid within that time, the petitioner is liable to handover the possession of the property to the bank voluntarily without any protest as well. If the amount is paid of and the liability is discharged, then the bank is directed to execute all necessary documents discharging the liability over the property and release the property from the liability to the petitioner. The Chief Judicial Magistrate, Kozhikode is directed to keep the proceedings in Crl.M.P.189/2014 pending before that court in abeyance for a period of two months from today. If the amount is not paid and the bank informs the court regarding the non - compliance of the direction by this court, then, the Chief Judicial Magistrate is directed to proceed with the proceedings and take all steps to handover the possession of the property to the petitioner accordingly. With the above observations and directions, the petition is disposed of. Office is directed to communicate this order to the concerned court immediately.