K.V. Palanivel and Jay Yes Fabrics vs The South Indian Bank Ltd.

M. Jeyapaul, J.—The Revision is directed against the order passed by the learned Chief Judicial Magistrate, Erode, directing to take

delivery of possession of the secured assets through Advocate Commissioner.

The respondent herein filed an application seeking assistance u/s 14 of the Securitisation and Reconstruction of Financial Assets and

Enforcement of Security Interest Act, 2002 (SARFAESI Act). Learned Chief Judicial Magistrate, Erode having been satisfied with the sworn

statement of the authorised officer examined on the side of the respondent herein and the documents Ex.P1 and P4 marked, arrived at a conclusion

that all the legal formalities have already been complied with scrupulously by the respondent herein and consequently conferred the relief sought for

by the applicant.

The order passed by the learned Chief Judicial Magistrate, Erode, is challenged by way of revision before this Court. Learned Counsel

appearing for the revision petitioner would submit that no notice u/s 13(2) of the SARFAESI Act was issued to the petitioners herein, and no

finding also was recorded by the learned Chief Judicial Magistrate, Erode as to the compliance of the mandatory provisions of Section 13 of the

said Act. The second application filed by the respondent seeking the very same relief is not maintainable in law, he would submit.

Per contra, learned Counsel appearing for the respondent would submit that the learned Chief Judicial Magistrate, Erode has specifically

referred to the sworn statement of the authorised officer and the documents filed along with the petition seeking assistance under the SARFAESI

Act and arrived at a conclusion that the respondent herein is entitled to the relief sought for. The second application was filed only when an

irregularity was noticed by the learned Chief Judicial Magistrate, and pointed out to the respondent herein. Therefore, the second application is

maintainable, he contends.

It is highly atrocious to contend when the notice u/s 13(2) of the Act and the acknowledgment for receipt of the notice were produced before

the learned Chief Judicial Magistrate that no such notice was issued to the petitioners herein. When the said documents were produced before the

learned Chief Judicial Magistrate, Erode in the background of the sworn statement of the authorised officer of the respondent, learned Chief

Judicial Magistrate, Erode was pleased to grant the relief as sought for. Learned Chief Judicial Magistrate, was pleased to observe that all the

formalities were complied with by the respondent before approaching him by invoking the provision u/s 14 of the Act. No detailed finding is

required in the administrative order expected from the learned Chief Judicial Magistrate. When the documents have been produced and those

documents form part of the records and the learned Chief Judicial Magistrate has clearly observed that all the formalities have already been

complied with, the petitioners herein cannot have any grievance. Learned Chief Judicial Magistrate having been satisfied that all the formalities were

already complied with passed the order impugned.

Learned Counsel appearing for the petitioners submitted the decision of this Court in Indian Overseas Bank v. Sri Aravindh Steels Limited 2009

(1) CTC 341, wherein the judgment of the Division of the Bombay High Court in Tradewell v. Indian Bank was usefully referred to. It has been

observed therein that the bank or financial institution shall verify and confirm that notice u/s 13(2) of NPA Act is given before the application u/s 14

is made.

In the instant case, it is found that the very notice issued u/s 13(2) of the SARFAESI Act along with the acknowledgment reportedly received

from the petitioner herein were produced for the perusal of the learned Chief Judicial Magistrate. The sworn statement of the authorised officer of

the respondent would go to show that the respondent having verified and confirmed the notice u/s 13(2) of the said Act moved the petition u/s 14

of the said Act was filed before the learned Chief Judicial Magistrate, Erode. In the above facts and circumstances, the above authority does not

come to the rescue of the petitioners herein.

It is true that the petition in CMP. No. 141 of 2009 on the file of the learned Chief Judicial Magistrate, Erode was filed after the earlier

application filed by the very same respondent stood dismissed as withdrawn. In the considered opinion of this Court any number of applications

can be filed under the SARFAESI Act before the learned Chief Judicial Magistrate concerned seeking assistance, even without securing the leave

of the Court. The right to secure assistance does not get terminated the moment the earlier application filed by the bank or financial institution

stands withdrawn, as the right to the bank or financial institution is a continuing and recurring one. The financial institution or the bank can approach

the learned Chief Judicial Magistrate concerned with necessary application even if the earlier application stood dismissed for certain irregularities.

Learned Counsel appearing for the petitioner submitted that the decision reported in Avinash Nagra Vs. Navodaya Vidyalaya Samiti and

Others, . That was a case arising under Service Law. The first writ petition challenging the order of termination having been withdrawn without

grant of liberty by the Court, the second Writ Petition was filed for the very same purpose. Therefore applying the principle of constructive res-

judicata, it was held that the second Writ Petition is not maintainable. Learned Counsel for the petitioner also cited yet another authority of the

Bench of this Court in Nortan Intec Rubbers Pvt. Ltd. v. State Industries Promotion Corporation of Tamil Nadu Limited and 3 Ors. 2005 4 L.W.

That was also a case, where the first Writ Petition was withdrawn as dismissed without seeking liberty to file the fresh Writ Petition. The

aforesaid principles laid down by the Honourable Supreme Court and also by the Bench of this Court, will not apply to the proceedings initiated by

the banker or financial institution u/s 14 of the SARFAESI Act.

In view of the above facts and circumstances, the Court holds that there is no irregularity or illegality in the order passed by the learned Chief

Judicial Magistrate, Erode. Therefore, the Revision fails and it stands dismissed. Consequently, connected Miscellaneous Petition is closed. No

costs.