IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN MONDAY, THE 19TH DECEMBER 2011 / 28TH AGRAHAYANA 1933 WP(C).No. 21024 of 2011(C) ----------------------------------- CMP.2009/2011 of C.J.M.,KOLLAM .......................................... PETITIONER: --------------- M/S.ICICI BANK LTD, ICICI BANK TOWERS NO.1, COMMISSARIAT ROAD, BANGALORE REPRESENTED BY ITS AUTHORIZED OFFICER. BY ADVS. SRI.A.A.ZIYAD RAHMAN SRI.LAL K.JOSEPH RESPONDENT: ------------------ 1. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA AT ERNAKULAM. 687031. 2. SATHEESH K.R., KRISHNA BHAVAN, ARKANNOOR P.O., ELAMADU, NEAR ARKANNOOR B.ED COLLEGE, AYOOR, KOLLAM - 685 057. 3. MAYA T.R., W/O.SATHEESH K.R., KRISHNA BHAVAN, ARKANNOOR P.O., ELAMADU, NEAR ARKANNOOR B.ED COLLEGE, AYOOR, KOLLAM. * ADDL. R4 IMPLEADED 4. BINU THOMAS NADUKUNNI THZHATHIL PUTHEN VEEDU KOZHAKIKAR, KOTTARAKKARA, KOLLAM DISTRICT - PIN 691 506. R1 BY GOVT.PLEADER SHOBHA ANNAMMA EAPEN R2 & R3 BY ADVS. SRI.BECHU KURIAN THOMAS ADDL.R4 BY SRI.T.KRISHNAN UNNI, SENIOR ADVOCATE SRI.SAJU.S.A THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19/12/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: JM WPC NO. 21024 OF 2011 APPENDIX PETITIONER'S EXHIBITS: P1: TRUE COPY OF THE AFORESAID APPLICATION P2: COPY OF REPORT SUBMITTED BY THE ADVOCATE COMMISSIONER IN THIS REGARD P2(A): TRUE COPY OF THE MAHAZER P3: COPY OF C.M.P. 2009/2011 IN C.M.P 17458/2009 P4: COPY OF ORDER DT. 31ST MAY, 2011 IN C.M.P. 17458/2009 RESPONDENT'S EXHIBITS: R2(A): COPY OF NOTICE DT. 26.4.2011 ISSUED BY THE PETITIONER IN INDUSTRY'S ADDRESS R2(B): COPY OF ENVELOPE IN WHICH EXT. R2(A) LETTER WAS ISSUED R2(C): COPY OF FIR IN CRIME NO. 9/2011 OF CHADYAMANGLAM POLICE STATION R2(D): COPY OF REFER REPORT FILED IN CRIME NO. 9/2011 IN CMP 17458/2009 ON THE FILES OF THE CHIEF JUDICIAL FIRST CLASS MAGISTRATE COURT KOTTARAKKARA R2(E): COPY OF OBJECTION FILED IN CMP 2009/2011 IN CMP 7458/2009 ON THE FILES OF THE CHIEF JUDICIAL FIRST CLASS MAGISTRATE COURT R2(F): COPY OF REQUEST SENT BY THE 2ND RESPONDENT ON 24.02.2011 R4(A): COPY OF LETTER DT. 1.10.2010 R4(B): COPY OF ORDER DT. 7.4.2011 OF THE SUBORDINATE JUDGE, KOTTARAKKARA, IN I.A NO. 1915 OF 2010 IN O.S.NO. 197 OF 2010 \\ TRUE COPY\\ PA TO JUDGE JM S.SIRI JAGAN - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C)NO.21024 OF 2011 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 19th day of December 2011 --------------------------------------------------- JUDGMENT The petitioner in this writ petition is a bank, who initiated proceedings under the Securitisation & Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 against respondents 2 and 3 for recovery of loan amounts due from them to the petitioner-bank. The petitioner-bank approached the Chief Judicial Magistrate under section 14 of the Act for taking over possession of the secured asset. Initially, the Chief Judicial Magistrate took over possession and handed over the same to the petitioner bank. The petitioner-bank alleges that subsequently the father of the defaulter forcibly encroached into the building in the secured asset tampering with the lock and seal affixed by the Advocate commissioner appointed by the Chief Judicial Magistrate and repossessed the property. The petitioner again submitted Ext.P3 application before the Chief Judicial Magistrate for assistance under section 14 of the Act. The same has been dismissed by Ext.P4 order. That is under challenge in this writ petition. 2. I heard the parties. 3. I do not think that the Chief Judicial Magistrate was justified in dismissing the application. There is no res judicata as such in the 2 matter. When the possession has been forcibly retaken by the defaulter or anybody claiming under the defaulter, the situation reverts back to the original situation when the Chief Judicial Magistrate appointed a Commission to take possession. Therefore, the Chief Judicial Magistrate is bound to reconsider the application in accordance with section 14. If the same is not done that will amount to failure of justice and will promote illegal activities by defaulters by taking law into their own hands, which cannot be permitted. In fact, the proceedings now initiated are only a continuation of the earlier proceedings. The Chief Judicial Magistrate is bound to ensure that the order passed by the Chief Judicial Magistrate earlier is properly implemented. In the above circumstances, Ext.P4 is quashed. The Chief Judicial Magistrate, Kollam is directed to take further proceedings as contemplated under section 14 on Ext.P3 application filed by the petitioner, which shall be taken as a continuation of the earlier proceedings. The writ petition is allowed as above. S.SIRI JAGAN, JUDGE STU 3 4