S SHANTHA Vs. CHIEF JUDICIAL MAGISTRATE COIMBATORE

JUDGEMENT

(1.) WHEN the miscellaneous petition seeking for stay of the impugned order passed by the learned Chief Judicial Magistrate, Coimbatore, is taken up for hearing, by consent the main writ petition itself is considered and disposed of by the following order.

(2.) THE petitioner's son viz., Thiru.S.Palaniappan, the second respondent, availed loan from the third respondent Syndicate Bank, Coimbatore Branch and defaulted in repayment. For availing loan, he had mortgaged a plot measuring an extent of 1838 sq.ft. in Kumarapalayam Village, Coimbatore District and the building thereon.

(3.) THIS Court, in the judgment reported in 2010 CIJ 386 CLJ, (V.Noble Kumar vs. The Authorised Officer, Standard Chartered Bank, Auto and Mortgage Collections, Chennai and others), has elaborately considered the manner in which such applications are to be considered. THIS Court had considered the strict compliance of the provisions keeping in mind the right of a citizen over the property under Article 300A of the Constitution of India. First of all, the Magistrate has to consider whether the bank has declared the debt as Non-Performing Asset; secondly, whether after such declaration, notice under Section 13(2) was issued in terms of that provision; and thirdly, whether the bank has taken measures for taking possession under Section 13(4) and whether there are any resistance by the person in occupation of the premises. In the event, the above procedures are complied with by the bank, the Magistrate can certainly entertain the application and order for appointing an Advocate Commissioner to take physical possession of the secured asset. Of course, while considering the application under Section 14, the Magistrate is only performing ministerial function. Nevertheless, as he deals with the property of a citizen, he is duty bound to consider as to whether the above provisions are strictly complied with. He is not expected to go into the validity of either the declaration of the asset as Non-Performing Asset or the notice under Section 13(2) or 13(4), but should only find out whether the procedures have been followed before the application under Section 14 is considered.