IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM MONDAY, THE 21ST DECEMBER 2009 / 30TH AGRAHAYANA 1931 WP(C).No. 35947 of 2009(K) -------------------------- MP.10853/2009 of CHIEF JUDL.MAGISTRATE, ERNAKULAM .................... PETITIONER(S): --------------- HOUSING DEVELOPMENT FINANCE CORPORATION LIMITED, (HDFC LTD. IN SHORT) RAMON HOUSE, 169 BACK BAY RECLAMATION, MUMBAI-400020, REPRESENTED BY THE AUTHORISED OFFICER, HDFC HOUSE, 3RD FLOOR, RAVIPURM JUNCTION M.G.ROD, KOCHI-682015. BY ADV. SRI.C.P.SAJI RESPONDENT(S): --------------- 1. UNION OF INDIA, REPRESENTED BY ITS SECR4ETARY, MINISTRY OF FINANCE, NEW DELHI. 2. JOSEY.K.C., KURISINGAL HOUSE, IX/153, KAMBIRI ROAD, FORT KOCHI-682001. ADV. SRI.T.P.M.IBRAHIM KHAN,ASST.S.G OF INDI FOR R1 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 21/12/2009, ALONG WITH WPC NO. 35948 OF 2009 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: C.K. ABDUL REHIM, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - - W.P. (C) No. 35947 & 35948 OF 2009 - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 21st day of December, 2009 J U D G M E N T Petitioner in both these cases is the financial institution which sanctioned housing loans to the party respondents herein. These writ petitions are filed aggrieved by non disposal of petitions filed before the Chief Judicial Magistrate Court, Ernakulam and the Chief Judicial Magistrate Court, Thodupuzha. Consequent to default committed in repayment of loan amounts, the petitioner had initiated proceedings under the Securitization and reconstruction of Financial Assets and Enforcement of Security Interest Act (SARFAESI Act). The Chief Judicial Magistrates were approached invoking Section 14 (1) of the Act. Complaint of the petitioner is that eventhough Section 14 does not contemplate an adjudication on the matter, the learned Magistrates have issued notices to the borrower and the matter is being adjourned from time to time for appearance of the respondents. 2. In this regard Shri. C.P. Saji, learned counsel for the petitioner had drawn my attention to the decisions of this Court in Sindhu Vs. State of Kerala(2008(2)KLT 36 and Muhmmed Ashraf vs. Union of India (2008(4)KLT 1). In the latter decision, WPC.Nos.35947 & 35948 of 2009 : 2 : this Court observed that, a reading of the statutory provisions contained in section 14 will reveal that the Magistrate is only assisting the secured creditor in taking possession of the secured assets as provided under Section 13(4). The Magistrate has no power to refuse such request, but he can only verify whether 60 days notice as prescribed under section 13(2) was issued or not and as to whether the secured asset is identifiable or not. The Magistrate is acting as an executing or administrating authority and before taking such action he must be satisfied that the above said conditions are complied with. Eventhough there is no scope for an adjudication or trial of dispute, the Magistrate is not acting like an amin of the court, executing a court order. But the Magistrate should satisfy himself that the petition is maintainable. 3. Going by the dictum laid in the above decision, it is clear and evident that there is no scope for an adjudication in a proceedings under section 14. On the other hand, the Magistrate need only to arrive at a conclusion that there is proper compliance of Section 13(2) and that the asset in question is identifiable. But for arriving at such a conclusion matter need not be prolonged, under the premise of issuing notice to the borrower. Eventhough it cannot be said that issuing notice to the borrower is totally irrelevant or without jurisdiction, the Magistrate can evaluate compliance of the WPC.Nos.35947 & 35948 of 2009 : 3 : mandatory conditions even without appearance of the borrower. Therefore at any rate prolonged adjournments awaiting appearance of the respondent in the CMPs, in these cases, could not be justified. Being proceedings in the nature of execution, expeditious action is expected in the matter of section 14(1). 4. In the above circumstances, I am of the opinion that these writ petitions can be disposed of on issuing necessary directions to the learned Magistrates concerned, for having an expeditious disposal of the matter. 5. Accordingly, these writ petition are disposed of directing the Chief Judicial Magistrates, at Ernakulam and Thodupuzha, to consider and pass orders on the application filed as Ext.P5 in WP(c)35947/09 and Ext.P6 in WP(C) 35948/09, as expeditiously as possible, at any rate within one month from the date of receipt of a copy of this judgment. ( C.K. ABDUL REHIM, JUDGE) jma