IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON FRIDAY, THE 18TH JUNE 2010 / 28TH JYAISTHA 1932 WP(C).No. 8087 of 2010(I) ------------------------ CMP.8189/2009 of C.J.M.,THODUPUZHA .................... PETITIONER: --------------- AUTHORISED OFFICER, DEWAN HOUSING FINANCE CORPORATION LTD., 1ST FLOOR, K.M.M. BUILDING, PAALARIVATTOM, ERNAKULAM. BY ADV. MR. K.THYAGARAJESWARAN RESPONDENTS: --------------- 1. ASHOKAN.T.S., S/O.SREEDHARAN, THAKIDIYEL HOUSE, NEAR GOVT.COLLEGE, KATTAPPANA P.O., IDUKKI-685 508. 2. SINDHU.N.P., W/O.ASHOKAN T.S., USHA SATHYAN, THAKIDIYEL HOUSE, NEAR GOVT. COLLEGE KATTAPPANA P.O., IDUKKI-685 508. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 18/06/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.R. RAMACHANDRA MENON J. ~~~~~~~~~~~~~~~~~~~~~~~ W.P. (C) No. 8087 of 2010 ~~~~~~~~~~~~~~~~~~~~~~~ Dated, this the 18th day of June, 2010 JUDGMENT The petitioner financial institution is before this Court, aggrieved of Ext.P1 order passed by the learned Chief Judicial Magistrate, Thodupuzha in CMP 8190 of 2009, whereby Ext.P2 application preferred by the petitioner under Section 14 of the SARFAESI Act, for rendering necessary police assistance to take physical possession of the premises, over which security interest has been created by the borrower, was simply dismissed stating that, the petitioner was absent and there was no representation. 2. With reference to the specific averments in the Writ Petition, particularly in paragraph 6, the learned counsel for the petitioner submits that, the petitioner was earnestly prosecuting the matter and on the particular day i.e. 16.12.09, the concerned lawyer could not appear himself, under which circumstance, another lawyer was entrusted with the matter to make appropriate submission, who made such submissions to have the matter adjourned and also caused to file an application in this regard. This however was not accepted by the learned Magistrate, allegedly for the reason that, it was likely to be treated as a complaint under Section 200 of Cr.P.C., that the absence W.P. (C) No. 8087 of 2010 : 2 : of the petitioner was very much fatal and further that the learned counsel who made the representation was not having the 'vakalath' of the party concerned. It was accordingly, that the impugned order was passed, simply observing the party as well as the counsel were absent, which is not correct and is liable to be entertained. 3. Pursuant to urgent notice ordered on admission, both the respondents have entered appearance. 4. Considering the particular facts and circumstances, this Court does not find it necessary to go into the merits of the allegations and to ascertain the position as to what transpired on 16.12.2009 causing dismissal of the petition as per Ext.P1. This Court finds that, interest of justice could be satisfied by permitting the petitioner to file a fresh petition before the concerned Chief Judicial Magistrate. More so, since there is absolutely no legal bar to pursue such course. 5. In the above circumstances, the Writ Petition is closed, reserving the rights and liberties of the petitioner to file a fresh petition under Section 14 of the SARFAESI Act, seeking for necessary relief before the concerned Chief Judicial Magistrate. Nothing is expressed with regard to the merits of the case, including the rights and liabilities of the parties concerned, in connection with the loan transaction. P. R. RAMACHANDRA MENON, JUDGE kmd