IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN WEDNESDAY, THE 13TH AUGUST 2008 / 22ND SRAVANA 1930 WP(C).No. 6697 of 2007(V) ------------------------------------- PETITIONER: ------------------ THE HOUSING DEVELOPMENT FINANCE CORPORATION LTD (HDFC LTD), HDFC HOUSE, 3RD FLOOR, RAVIPURAM JUNCTION, M.G.ROAD, KOCHI-682 105, REPRESENTED BY ITS AUTHORIZED OFFICER, ARUN KUMAR BY ADV. SRI.KKM.SHERIF SRI.P.A.MOHAMMED ASHROF SRI.LAL K.JOSEPH SRI.A.A.ZIYAD RAHMAN SMT.RUKMA S RAJ RESPONDENTS: ---------------------- 1. THE DISTRICT COLLECTOR, KOZHIKODE. 2. THE ADDITIONAL DISTRICT MAGISTRATE, KOZHIKODE. 3. THE TAHASILDAR, KOZHIKODE TALUK, KOZHIKODE. 4. THE VILLAGE OFFICER, CHERUVANNUR VILLAGE, KOZHIKODE DISTRICT. 5. ABDUL RAHMAN.P., PATTERKANDY HOUSE, AREEKKADU, NALLALAM P.O., KOZHIKODE. 6. ABDUL RAHMAN.P., N.B.R.HOUSE, THANNIKKUNNATHUPARAMBA, THIRUVANNUR P.O., KOZHIKODE. 7. ABDUL KADER.P., PATTERKANDY HOUSE, AREEKKADU, NALLALAM P.O., KOZHIKODE. SR. GOVERNMENT PLEADER SRI.BENNY GERVACIS FOR R.1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 17/07/08, ALONG WITH W.P.(C). NO. 28106 OF 2007 AND W.P.(C). NO.6349 OF 2008, THE COURT ON 13/08/2008 DELIVERED THE FOLLOWING: W.P.(C).6697/2007-V APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE NOTIFICATION DATED 10/11/2003 ISSUED BY THE CENTRAL GOVERNMENT. EXT.P2: COPY OF THE APPLICATION 16/01/2006. RESPONDENT'S EXHIBITS: NIL // TRUE COPY // P.S. TO JUDGE Rs/ J.B. Koshy & P.N.Ravindran, JJ. -------------------------------------- W.P.(C) Nos.6697 and 28106 of 2007 and 6349 of 2008 --------------------------------------- Dated this the 13th day of August, 2008 Judgment Koshy,J. In these three writ petitions, authorised officer of the financial institutions approached the District Collector under section 14 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (in short ‘the Securitisation Act’). Section 13 (4) (a) of the Act reads as follows: "(4) In case the borrower fails to discharge his disability in full within the period specified in sub-section (2), the secured creditor may take recourse to one or more of the following measures to recover his secured debt, namely: "(a) take possession of the secured assets of the borrower including the right to transfer by way of lease, assignment or sale for realizing the secured asset.” Under section 14, if an application is made before it, District Magistrate is bound to give assistance to the secured creditor in taking possession of the secured asset. Section 14 (1) and (2) read as follows: "14. Chief Metropolitan Magistrate or District Magistrate to assist secured creditor in taking possession of secured asset:- (1) Where the possession of any secured asset is required W.P.(C)Nos.6697 & 28106/2007 2 6349/2008 to be taken by the secured creditor or if any of the secured assets is required to be sold or transferred by the secured creditor under the provisions of this Act, the secured creditor may, for the purpose of taking possession or control of any such secured assets, request, in writing, the Chief Metropolitan Magistrate or the District Magistrate within whose jurisdiction any such secured asset or other documents relating thereto may be situated or found, to take possession thereof, and the Chief Metropolitan Magistrate or as the case may be, the District Magistrate shall, on such request being made to him -- (a) take possession of such asset and documents relating thereto; and (b) forward such asset and documents to the secured creditor. (2) For the purpose of securing compliance with the provisions of sub-section (1), the Chief Metropolitan Magistrate or the District Magistrate may take or cause to be taken such steps and use, or cause to be used, such force, as may, in his opinion, be necessary." 2. Contention of the petitioner in W.P.(C) No.6697 of 2007 is that he filed Ext.P2 application, but, no action is being taken. In W.P.(C) Nos.28106 of 2007 and 6349 of 2008, applications were filed before the Collector. The Collector simply sent the matter to the Commissioner of Police and Tahsildar for necessary action. The Tahsildar, thereafter, forwarded the same to the Village Officer. Section 14 contains provision to enable the W.P.(C)Nos.6697 & 28106/2007 3 6349/2008 secured creditor to take the assistance of District Magistrate in taking possession of the secured asset. When the authorised officer of the secured creditor makes an application for assistance for taking possession, he is bound to take possession of such asset and documents relating thereto and forward such asset and documents to the secured creditor. Section 14 (2) of the Act, specifically authorises him to take such steps or force necessary for the purpose of compliance with the provisions of section (1) and mere forwarding of the application to the Police or Tahsildar is not enough. Therefore, these writ petitions are disposed of directing the District Collector to dispose of the application to take action as provided under section 14 of the Securitisation Act as expeditiously as possible, according to law. While taking possession, he can get the assistance of the Police or any other step. J.B.Koshy Judge P.N.Ravindran Judge vaa W.P.(C)Nos.6697 & 28106/2007 4 6349/2008 J.B. KOSHY AND P.N.RAVINDRAN,JJ. ------------------------------------- W.P.(C) Nos.6697 and 28106 of 2007 and 6349 of 2008 ------------------------------------- Judgment Dated: 13th August, 2008