IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN TUESDAY, THE 5TH JULY 2011 / 14TH ASHADHA 1933 WP(C).No. 16716 of 2011(L) -------------------------- PETITIONER: --------------- T.KALESAN, S/O.THANKAPPAN PILLAI, RESIDING AT 'KAILAS', MANAKKARA, SASTHAMCOTTA, KOLLAM. BY ADV. MR. V.CHITAMBARESH, SENIOR ADVOCATE MR. T.C.SURESH MENON MR. JIBU P THOMAS MR. P.S.APPU MR. A.R.NIMOD MR. C.A.ANOOP MR. MATHEWS RAJU RESPONDENTS: --------------- 1. M/S CANARA BANK, REPRESENTED BY ITS CHIEF MANAGER, HARIPAD BRANCH, ALAPPUZHA-690514. 2. M/S.RIDE MOTORES, NEW PONSON BUILDING, NEAR RAILWAY OVER BRIDGE, M.C.ROAD, CHENGANNUR, PIN 689 121, REPRESENTED BY ITS PARTNERS (1) VIPIN, (2) BINU LAL S.D. AND (3) S.NIZAR. 3. MR. VIPIN, RESIDING AT VINU VILLA, KARUVATTA P.O., ALAPPUZHA-690 517. 4. MR. BINU LAL.S.D., RESIDING AT SHYLAJA BHAVANAM, KARUVATTA NORTH, ALAPPUZHA-690 517. 5. MR. NIZAR.S., S/O.SULAIMAN KUNJU, RESIDING AT VAZHAVILAYIL, PALLISSERIKKAL P.O., SASTHAMCOTTA, KOLLAM-690 521. GOVERNMENT PLEADER MR.C.K.GOVINDAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 05/07/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 16716 of 2011(L) APPENDIX ---------------- PETITIONER'S EXHIBITS ----------------------------------- P1:- TRUE COPY OF THE DISCHARGE FROM LIABILITY CERTIFICATE ISSUED BY THE STATE BANK OF TRAVANCORE DT.12.10.10 P2:- TRUE COPY OF THE ENCUMBRANCE CERTIFICATE OBTAINED IN RESPECT OF THE PROPERTY FOR THE PERIOD FROM 1.1.93 TO 7.12.10 DT. 9.12.10 P3:- TRUE COPY OF C.M.P.NO. 7370/2010 FILED BY THE FIRST RESPONDENT ON THE FILE OF THE COURT OF THE CHIEF JUDICIAL MAGISTRATE, KOLLAM DT. JULY, 2010 P4:- TRUE COPY OF THE ORDER IN C.M.P NO.7370/10 ON THE FILE OF THE COURT OF THE CHIEF JUDICIAL MAGISTRATE DT.16.8.10 P5:- TRUE COPY OF C.M.P.NO.16/11 IN C.M.P.NO.7370/2010 ON THE FILE OF THE COURT OF THE CHIEF JUDICIAL MAGISTRATE DT.10.12.10. P6:- TRUE COPY OF THE COUNTER OBJECTION FILED BY THE FIRST RESPONDENT DATED -NIL- P7:- TRUE COPY OF THE OBJECTION FILED BY THE FIRST RESPONDENT DATED -NIL- P8:- TRUE COPY OF THE ORDER IN C.M.P.NO.16/11 IN C.M.P.NO.7370/10 ON THE FILE OF THE COURT OF THE CHIEF JUDICIAL MAGISTRATE, KOLLAM DATED 18.5.11. RESPPONDENT'S EXHIBITS :- NIL RKC //TRUE COPY// PA TO JUDGE S. SIRI JAGAN, J. ------------------------------------------- W.P.(C) No.16716 OF 2011 ---------------------------------------------- Dated this the 5th day of July, 2011 JUDGMENT The petitioner is challenging orders of the Chief Judicial Magistrate, Kollam in proceedings under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, whereby the petitioner's application for impleading in the proceedings has been rejected on the ground that the property in question is a security asset charged in favour of the 1st respondent bank. The petitioner's contention is that for deciding the question as to whether it is a security asset or not, the petitioner should have been impleaded and the petitioner's contention ought to have been heard. The petitioner relies on the decision of this Court in Ayishumma v. Hassan [2009(3) KLT 399] on the question as to whether the Chief Judicial Magistrate has jurisdiction to decide such questions. According to him, the Magistrate is bound to decide the question as to whether the property is a secured asset or not, after hearing the petitioner. According to the petitioner, the property in question W.P.(C)No.16716/11 2 was never mortgaged to the 1st respondent bank. But, it was mortgaged to the State Bank of Travancore,which liability had been discharged. 2. I have heard the learned counsel appearing for the bank also. The order impugned (Ext.P8) reads as follows: “An Application filed for impleadment of R5 and R6. 2. Copy served and other side filed strong objection. 3. The prayer is to implead the petitioners as R5 and R6. Admittedly the main petition is filed under section 14 of the SARFAES Act. So I am of opinion that this court has no jurisdiction to allow or even to entertain such prayer. Further no provision or authority is placed before me inorder to support the prayer. Further the title claimed by the petitioner is seen obtained by them by executing the deed only on 9-10-10. So it is obvious that it was executed after a lapse of 53 days from the date of filing of the main petition and 11 months from the date of receipt of Notice under section 13 of the Act. So also the expected legal sanctity cannot be attributed to these documents as far as the case on hand is concerned. The records will speak that the original deeds were kept with the bank from the date of creating equitable mortgage as early as on 27-3-08. In these circumstances, I am of opinion that this court has no jurisdiction to entertain the prayer. If at all the petitioners are aggrieved, then they have to recourse to other legal remedies and not to file such an application here. 3. Hence the application stands dismissed.” The order is passed on the petitioner's application. Therefore, the petitioner cannot now contend that the petitioner was not heard in the matter. In the impugned order, on materials on W.P.(C)No.16716/11 3 record, the Chief Judicial Magistrate found that the property in question is a secured asset. The Chief Judicial Magistrate also found that the petitioner got title only on 9.10.2010, 53 days after the date of the filing the main petition and 11 months after the date of receipt of notice under Section 13 of the Act. 3. The learned Standing Counsel for the bank submits that the 5th respondent, who is the mortgagee himself, had approached this Court by filing W.P.(C)No.34379/2010, in which he admitted that the property in question was mortgaged to the bank and this Court had directed him to pay Rs.7 lakhs as a condition for stay of further proceedings, which he has not complied with. Thereafter, the writ petition was dismissed on 17.1.2011, is his contention. 4. I have considered the rival contentions in detail. The question as to whether the property in question is a secured asset or not is a question of fact which is in dispute. The Chief Judicial Magistrate considered the materials before him and found that the same is a secured asset. The petitioner was also heard on the question while deciding that issue. If that be so, in order to resolve the disputed question of fact, the remedy of the petitioner lies in filing an appeal W.P.(C)No.16716/11 4 before the Debt Recovery Tribunal as provided under the Act. Therefore, without prejudice to that right, this writ petition is dismissed. S. SIRI JAGAN, JUDGE acd W.P.(C)No.16716/11 5