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In the Court of the Chief Judicial Magistrate, Kancheepuram
Present: Thiru. M. Vasantha Kumar, M.L.,
Chief Judicial Magistrate,
Kancheepuram.
Dated at Kancheepuram, this the 05th day of February, 2025
Crl. M.P. No. 18/2025
Union Bank of India, Erst While Corporation Bank,
Kanchipuram Branch, Now having office at No-54,
Vanigar Street, Kanchipuram,
Represented by its Authorized Officer and Chief Manager
Mrs. K. Smitha, Union Bank of India,
Asset Recovery Branch, Elcanso Building,
No.9, Casa Major Road,
Egmore, Chennai – 600 008. .....Petitioner
- Vs -
1. Mr. C. Gopi S/o. G. Chandrasekaran,
2. Mrs. G. Uma W/o. Mr. C. Gopi,
(Both are residing at Plot No. 10,11,12 part,
2nd Floor, Evergreen Apartments, Ambedkar Street,
Anna Nagar, Kanchipuram. .....Respondents
This petition having stood over for consideration on the file of this court till
this date finally came up before me on 01.02.2025 in the presence of M/s.
S. Vijaya, learned counsel for the petitioner and upon perusing the records and hear-
ing the arguments of the petitioner this court today deliver the following
ORDER
1. This is a Petition filed by the Petitioner / Secured Creditor Under
Section 14 of the Securitisation and Reconstruction of Financial Assets and
Enforcement of Security Interest Act, 2002 (hereinafter in short referred as
SARFAESI Act) seeking to appoint an Advocate Commissioner to take possession of
the petition mentioned schedule of property and hand over the same to the Petitioner.
2. Mrs. K. Smitha, duly authorized officer of the Secured Creditor had
represented the Secured Creditor.
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3. The respondent/borrower had approached the Petitioner Bank for credit
facility and after considering the said request, the petitioner had sanctioned Rs.
20,00,000/- [Rupees Twenty Lakhs Only] vide Letter of Sanction dated 11.12.2018.
As agreed in terms of Sanction letter, the respondents/borrowers had executed a Loan
agreement and thereafter the amount was disbursed by Secured Creditor. The
respondents/borrowers had executed a letter evidencing deposit of title deeds viz.,
Sale Deed dated 31.12.2018 vide Document No. 3646/2018 and also executed a
Memorandum of Deposit of Title Deeds dated 31.12.2018 vide Document No.
3647/2018 and handed over the title deeds in respect of the petition mentioned
property in favour of the Petitioner.
4. The respondents/borrower has agreed to repay the above said Loan as
per the terms and conditions mentioned in the Loan agreement. The loan was
periodically revived and the respondents are liable to repay the loan and still the
Mortgage is continue to be in force.
5. The respondents/borrowers failed to repay the said loan either towards
principal or interest or charges thereon. Due to the default committed by the
respondent, the petitioner has classified the respondent account as Non Performing
Assets (NPA) as defined in Section 2(0) of the Act on 29.09.2024.
6. Thereafter the petitioner had issued a demand notice under section 13 (2)
of the SARFAESI Act dated 06.01.2020 to the respondent calling upon them to
discharge the liability which is amounting to Rs. 20,73,835/- [Rupees Twenty Lakhs
Seventy Three Thousand Eight Hundred and Thirty Five Only] arising out of
aforesaid agreements, as detailed in the said demand notice within 60 days from the
date of the said notice. The said notice sent through RPAD and the Postal Receipt,
Postal Acknowledgment Card are filed along with this petition.
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7. The respondents on receipt of Demand Notice issued under Section 13
(2) of the SARFEASI Act, neither replied to 13 (2) notice nor complied with the
demands made therein and hence the respondents are liable to pay the outstanding
dues as claimed in the 13(2) notices with accrued interest thereon. Thereafter the
possession notice under Section 13 (4) of the SARFAESI Act was issued to the
respondent on 01.10.2020 and also had taken symbolic possession. The said notice
sent through RPAD and the respondents were received the Notice under Section 13
(4) of the Act and the Postal Acknowledgment Receipt, Postal acknowledgment Card
and Tracking Consignment were filed along with this petition. The Possession notice
was also affixed in the schedule of property. The said Notice also published in two
leading daily newspapers in “New Indian Express” in English language and
“Dinamani” in Tamil language dated 06.10.2020. Hence the petitioner bank had
initiated recovery proceedings to recover the aforesaid secured debt due from the
respondents by way of taking possession and sale of the secured asset. The
Petitioner/Secured Creditor has apprehension that the respondents/and their men,
agents, servants may prevent the Authorized Officer of the Petitioner/Secured
Creditor from enter into the schedule property, and the same may cause breach of
peace as the respondents have proclaimed that if anybody from the Petitioner/Secured
Creditor approaches them to take possession of the schedule of property will be
threatened with dire consequences. In view of the proclamation, the respondent will
not hand over peaceful possession of the said Schedule of property to the Petitioner/
Secured Creditor and therefore the assistance of the Police while taking possession of
the mortgaged property is necessary in the instant case.
8. The Petitioner/Secured Creditor submits that the respondent/borrower
has not obtained any order of stay against the Secured Creditor for taking possession
of the Schedule of Property or any proceedings are pending before the D.R.T. or any
other forum pertaining to the borrower. Hence this petition.
9. Now the Point for determination is whether the petitioner/Bank is
entitled to the relief sought for in the petition.
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On the side of the Petitioner, the Chief Manager Mrs. K. Smitha. was examined
as P.W. 1 and through him Ex. P-1 to P-14 are marked.
In the case on hand, the petitioner/Bank has produced copy of Loan
agreement, Original Sale deed and M.O.D.T. Documents, copy of Notice under
Section 13(2) notice dated 06.01.2020 and Notice under Section 13(4) dated
01.10.2020. Effected Paper Publication, Mortgage Documents and other connected
documents establish that the respondents have availed financial services by way of
loan from the petitioner Bank. Statement of Accounts reveals that the respondents
are failed to repay the loan amount as per the terms and conditions which resulted in
classifying their loan account as Non Performing Asset. The Petitioner has proved
that the Petitioner mentioned schedule properties are hypothecated in favour of the
Petitioner/Secured Creditor. Mortgage Deed and Encumbrance certificate produced
by the petitioner shows that the respondent has mortgaged the petition mentioned
property. The evidence of P.W. 1 establishes that there is no stay pending against the
petitioner from dealing with the mortgaged property.
10. Standard Chartered Bank -vs- Noble Kumar and others
reported in 2013 CTC 6 683: 2013 (5) LW 97
The Hon’ble Supreme Court held that there is no adjudication of any kind at the stage
of application filed under Section 14 of SARFAESI Act and the authority acting
under the above provision is not required to give notice either to the borrower or to
the third party.
11. In Techno Builders and others //VS// Canara Bank and Others
(MANU/TN/9525/2019)
Our Hon'ble Madras High Court held that : “In the considered opinion of this
Court, Section 14 of the SARFAESI Act did not contemplate any notice of hearing/
objection from the Borrowers and as such there may not be any necessity of affording
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opportunity of personal hearing to the Borrowers/Petitioners and that apart though it
is the claim of the petitioner that the appeal is pending against recovery proceedings,
there is no interim order in operation and in the absence of the same, it is always open
to the 2nd respondent to proceed further in accordance with law while dealing with the
application filed under Section 14 of the SARFAESI Act by the 1st respondent”
There is a catena of decisions of the Hon’ble Apex Court and our Madras High
Court stating that in an application under Section 14 of the SARFAESI Act, no notice
is required to be issued to the respondents/borrowers. In view of the above Judicial
Precedents, this court feels that Section 14 is procedural in nature and merely
empowers this court to assist the Petitioner/secured creditor in taking possession of
the secured assets and no notice is required to be issued to the respondents. The
Petitioner has made out a conclusive case to show that the respondents are defaulters
and not repaid the loan amount and there is no stay against the petitioner to deal with
the secured asset. For all the above observations, this petition is allowed.
In the result this petition is allowed and Advocate M/s. K. Sabarivasan,
Enrollment No. Ms. 3310/2018, Mobile No. 9566652123 is hereby appointed as
Advocate Commissioner to take possession of the petition mentioned property and
hand over the same to the petitioner and to file a report within one month. At the time
of taking possession if necessary, Advocate Commissioner can get the Police
assistance/ Protection from the Taluk Police Station, Kanchipuram for taking
possession and Break open (if warranted), without approaching this court separately
for such purpose. Video Shooting and Photography are allowed during the
Panchanama and Inventory of the Properties. The Commissioner's remuneration is
fixed at Rs.20,000/-. The Petitioner is hereby directed to pay 50% of the remunera-
tion namely Rs. 10,000/- directly to the petitioner within 7 days from today. The
remaining remuneration will have to be paid by the petitioner to the Advocate
Commissioner at the time of filing his report. Report of the Advocate Commissioner
by 05.03.2025.
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Dictated by me to the Steno-typist, typed by her directly on computer,
Corrected and pronounced by me in Open Court on this the 05 th day of February
2025.
Sd/-M. Vasantha Kumar, M.L.,
Chief Judicial Magistrate,
Kancheepuram.
SCHEDULE OF PROPERTY
SCHEDULE A : All that piece and parcel of vacant plots bearing Plot No.10, 11 &
12 Part situated at No-62, Konerikuppam Village, Annamalai Nagar Extension,
Kanchipuram Taluk & District, comprised in Survey No. 136/7B, measuring 4080
Sq.ft., of Land, Bounded on the:-
North by : Plot No. 12 part,
Soutb by : 23 Feet Road,
East by : 23 Feet Road,
West by : Plot No. 7, 8 & 9.
Admeasuring:
East to West on the Western side : 60 Feet,
East to West on the Southern Side : 60 Feet,
North to South on the Eastern Side : 68 Feet,
North to South on the Western Side : 68 Feet,
In all measuring 4080 Sq.ft., of land, situated within the Sub-Registration District of
Kanchipuram Joint-I and Registration District of Kanchipuram.
SCHEDULE-B
Flat No. SF.4, in the second floor of the building measuring 929 Sq.ft., including
Common Areas.
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List of Petitioner side Evidence :
P.W. 1 – Mrs. K. Smitha,
List of Petitioner side Exhibits :
Exhibits Date Description of Documents Nature
Ex. P-1 - Employee Identity Card Copy
Ex. P-2 26.09.2024 Authorization Letter Copy
Ex. P-3 01.10.2018 Loan Application Form Copy
Ex. P-4 11.12.2018 Loan Sanction Letter Copy
Ex. P-5 31.12.2018 Agreement for Term Loan Copy
Ex. P-6 31.12.2018 Sale Deed Vide Document No. 3646/2018 Copy
Ex. P-7 31.12.2018 Memorandum of Deposit of Title Deeds Vide Copy
Document No. 3647/2018
Ex. P-8 06.01.2020 Demand Notice U/s. 13(2) of SARFAESI Act Copy
along with the Postal Receipt, Postal
Acknowledgment Card.
Ex. P-9 01.10.2020 Possession Notice U/s. 13(4) of SARFAESI Act Copy
along with the Postal Receipt and Postal
Acknowledgment Card.
Ex. P-10 - Photos of affixing Possession Notice Copy
Ex. P-11 06.10.2020 Paper Publication of Possession notice in Eng- Copy
lish ‘New Indian Express’
Ex. P-12 06.10.2020 Paper Publication of Demand notice in Tamil Copy
‘Dinamani’
Ex. P-13 23.10.2024 Statement of account Copy
Ex. P-14 01.01.2018 Encumbrance Certificate Copy
to
27.10.2024
Sd/-M. Vasantha Kumar, M.L.,
Chief Judicial Magistrate,
Kancheepuram.
