AYISHUMMA Vs. HASSAN

JUDGEMENT

(1.) Whether the concerned Magistrate is entitled to decide the merits of the contentions as to the claim for exclusion of the property under Section 31 (i) of the SARFAESI Act, while entertaining an application for assistance to take physical possession, invoking the power under Section 14 of the Act, is the subject matter of challenge.

(2.) The only grievance projected in the present Writ Petition is against Exts.P7 and P8 proceedings, in connection with the application preferred under Section 14 of the SARFAESI Act, before the Chief Judicial Magistrate, Manjeri, whereby an Advocate Commissioner has been appointed to take over possession of the secured asset, pursuant to the application filed by the Bank in this regard. The case of the petitioner is that, the property herein is an 'agricultural land', which is not liable to be proceeded against, by virtue of the exclusion stipulated under Section 31 (i) of the Act.

(3.) The respondent Bank, while disputing the contentions raised from the part of the petitioners, both on legal as well as factual grounds, states that, one of the guarantors by name T. Kunhimuhammed arrayed as the 4th respondent in the present proceedings and a partner of the firm, had earlier approached the DRT, Ernakulam by filing S.A. 29 of 2008, wherein interference was declined, however permitting the parties including the firm to discharge the liability within 3 months from 21.4.2008 as borne by Annexure R5(a). It is the case of the respondent Bank that neither the firm nor its partners/guarantors took any efforts to clear the liability within the speci-fied time or even thereafter. Accordingly the sale of the property was notified and in the course of proceedings to take over the physical possession of the property, the Bank had filed necessary proceedings before the Chief Judicial Magistrate's Court, Manjeri. During the pendency of the above proceedings before the Magistrate's Court, the first petitioner herein approached this Court by filing WP(C) No. 3104 of 2009, wherein interference was declined by this Court as borne by Annexure R5 (b), holding that the first petitioner (Writ Petitioner in WP(C) No. 3104 of 2009) has already suffered a verdict at the hands of the DRT, Ernakulam and that the parties will be bound by the order of the DRT. Taking note of the proceedings stated as pending before the Chief Judicial Magistrate's Court, Manjeri, it was observed that the petitioner could raise his contentions before the Chief Judicial Magistrate's Court and that dismissal of the Writ Petition will not stand in the way of such course of action.