SHIBU GEORGE Vs. STATE OF KERALA

JUDGEMENT

(1.) 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 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.

(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 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.