IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN FRIDAY, THE 29TH JULY 2011 / 7TH SRAVANA 1933 WP(C).No. 20678 of 2011(H) ---------------------------------------- AGAINST THE ORDER DATED IN CRMP 2199/11 IN CRMP.NO. 2198/2011 of CHIEF JUDL.MAGISTRATE, ERNAKULAM .................... PETITIONER(S): ------------------------ 1. M.K.NARAYANAN KUTTY , S/O.SHRI.LATE T.KRISHNAN NAIR R/O.LAKSHMI VIHAR,DORAISWAMY IYER ROAD ERNAKULAM, KERALA,SOLE PROPRIETOR, M/S. T.KRISHNAN NAIR, BROADWAY ERNAKULAM & MUVATTUPUZHA, KERALA. 2. SMT. THANKAMMA W/O.LATE SHRI T..KRISHNAN NAIR R/O.LAKSHMI VIHAR,DORAISWAMY IYER ROAD ERNAKULAM, KERALA,SOLE PROPRIETRIX, M/S DECCAN GLASS & PLYWOODS, M.C.ROAD, MUVATTUPUZHA ,KERALA. 3. MRS. SINDHU NARAYANAN KUTTY W/O.M.K.NARAYANAN KUTTY R/O.LAKSHMI VIHAR,DORAISWAMY IYER ROAD ERNAKULAM, KERALA,SOLE PROPRIETRIX, M/S HINDUSTAN GLASS,PULIMOOTIL COMPLEX PALA ROAD, THODUPUZHA KERALA. BY SRI.GEORGE THOMAS (MEVADA), SENIOR ADVOCATE BY ADV. SRI.GEORGE MATHEW SRI.DIPU JAMES RESPONDENT(S): -------------------------- 1. THE AUTHORISED OFFICER CUM SENIOR EXECUTIVE MANAGER, THE JAMMU & KASHMIR BANK LTD, ZONAL OFFICE SOUTH,S.WILLINGTON STREET, RICHMOND TOWN ,BANGALORE -25. 2. THE JAMMU & KASHMIR BANK LTD 40/8815, IST FLOOR, MG ROAD ERNAKULAM, COCHIN 16 REPRESENTED BY ITS BRANCH HEAD. 3. THE DEBTS RECOVERY TRIBUNAL ERNAKULAM REP BY ITS REGISTRAR, D R T OFFICE,PANAMPALLY NAGAR OFFICE, COCHIN 36. R1 & R2 ADV.SRI.N.SASI,SC THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 29/07/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sts WP(C)NO.20678/2011 APPENDIX PETITIONER'S EXHIBITS: P1 COPY OF THE NOTICE DATED 28/2/2011. P2 COPY OF THE NOTICES OF U/S 13 OF THE SARFAESI ACT ISSUED TO PETITIONERS 2 AND 3. P3 COPY OF THE NOTICES OF U/S 13 OF THE SARFAESI ACT ISSUED TO THE GUARANTORS. P4 COPY OF THE CRIMINAL MP NO.2200/2011 DATED 28/06/2011 FILED AGAINST THE PETITIONERS. P5 COPY OF THE CRIMINAL MP NO.2198/2011 DATED 28/06/2011 FILED AGAINST THE PETITIONERS. P6 COPY OF THE CRIMINAL MP NO.2199/2011 DATED 28/06/2011 FILED AGAINST THE PETITIONERS. P7 COPY OF THE ORDER OF THE LEARNED CJM ERNAKULAM, DATED 01/7/2011. P7A COPY OF THE MEMOS OF EVEN DATE ISSUED TO SI POLICE, CENTRAL POLICE STATION. P7B COPY OF THE MEMOSOF EVEN DATE ISSUED TO VILLAGE OFFICER. P8 COPY OF THE ORDER AND MEMOS ISSUED IN CRL.M.P.2198/2011 IN RESPECT OF 2ND PETITIONER. P8A COPY OF THE MEMOS ISSUED IN CRL.M.P.2198/2011 IN RESPECT OF 2ND PETITIONER. P8B COPY OF THE MEMOS ISSUED IN CRL.M.P.2198/2011 IN RESPECT OF 2ND PETITIONER. P9 COPY OF THE ORDER ISSUED IN CRL.M.P.2199/2011 IN RESPECT OF 3RD PETITIONER. P10 COPY OF THE CAVEAT APPLICATION FILED BEFORE THE THIRD RESPONDENT DATED 14/07/2011. P11 COPY OF THE NOTICE ISSUED BY THE 3RD RESPONDENT DATED 17/12/2010. RESPONDENT'S EXHIBITS: NIL /TRUE COPY/ P.A.TO.JUDGE sts S.SIRI JAGAN, J. ================== W.P.(C).No. 20678 of 2011 ================== Dated this the 29th day of July, 2011 J U D G M E N T In respect of certain loan amounts due from the petitioners, the 2nd respondent bank initiated proceedings under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002. The bank has approached the Chief Judicial Magistrate under Section 14 of the Act. According to the petitioners, the proceedings are without jurisdiction insofar as the persons who have taken action are not competent to do so. They are unable to approach the Debts Recovery Tribunal under Section 17 since the Tribunal has already issued a notice stating that no application under Section 17 would be entertained until symbolic or actual possession is taken under Section 13(4). It is under the above circumstances, the petitioners have filed this writ petition seeking the following reliefs: “i) to issue a writ in the nature of certiorari or such other writ order or direction, quashing Ext.P11 notice. ii) to set aside Exhibits P7, P8 and P9 orders and memos issued by the Hon'ble Chief Judicial Magistrate, Ernakulam, acting on Exhibits P4 to P6 incompetently filed by the second respondent.” 2. I have heard the learned standing counsel for the bank also. 3. I have already held in O.P(D.R.T.)No.2013/2011 and connected cases that the very act of approaching the Chief Judicial w.p.c.20678/11 2 Magistrate Court under Section 14 of the Act would constitute a measure under Section 13(4) of the Act and, therefore, an appeal would lie against that action before the Debts Recovery Tribunal. In fact, I have quashed that part of Ext.P11 notice of the Debts Recovery Tribunal holding to the contrary. In the above circumstances, this writ petition is disposed of with the following directions: If the petitioners file an appeal before the Debts Recovery Tribunal against the action of respondents 1 and 2 in approaching the Chief Judicial Magistrate under Section 14 of the Act, it shall be entertained by the Debts Recovery Tribunal under Section 17 of the Act. In order to enable the petitioners to file application under Section 17 and to seek interim orders from the Debts Recovery Tribunal, I direct that further proceedings under the Act shall be kept in abeyance for a period of two weeks. Sd/- sdk+ S.SIRI JAGAN, JUDGE ///True copy/// P.A. to Judge