IN THE COURT OF THE

CHIEF JUDICIAL MAGISTRATE,

BENGALURU RURAL DISTRICT, BENGALURU.

Present:- SRI V.PRAKASH, B.A.(Law) LL.B.,

CJM, Bengaluru Rural District, Bengaluru.

Dated this the 27th Day of November, 2021.

Crl.Misc.No.580/2021
Petitioner : M/s.Dewan Housing Finance Corporation Ltd.,
Having its branch office at
No.13, Old No.5, 1st Main Road,
Near Kodava Samaja, Vasanthnagar,
Bengaluru, Karnataka – 560 052.
Represented by its Authorised
Officer Sri.Arumugam.S, 48 years.

(By M/s.J.S.Advocates and Legal

Consultants, Advocate for petitioner)

-Vs-
Respondents : 1.Sri.Anil Jois.M.R,
S/o.Mr.Ranganathan.M,
45 years, R/at # 27, 5th Main,
6th Cross, KEB Layout,
Sanjaynagar, RMV Extension II Stage,
Bengaluru – 560 094.

2.Mrs.Prathima Anil,
W/o.Mr.Anil Jois,
43 years, R/at # 27, 5th Main,
 2 Crl.Misc.No.580/2021

6th Cross, KEB Layout,

Sanjaynagar, RMV Extension II Stage,
Bengaluru – 560 094.

************
O R D E R

The petitioner has filed the present petition under

section 14 of the Securitization and Reconstruction of

Financial Assets and Enforcement of Security Interest

Act, 2002[ hereinafter referred to as “the SARFAESI

Act”], through its authorized officer, seeking an order to

enable it to take physical possession of the property as

described in the schedule [ hereinafter referred to as “the

SECURED Asset”“].

2. The authorized officer of the petitioner bank

has also sworn to an affidavit and the same has been filed

alongwith the main petition.

3. The Hon’ble High Court of Karnataka in the case

between L&T Housing Finance Ltd., and

Sri.Vasukrishnamurthy (W.P.NO.35696/2015 (GM-RES),

decided on 03.09.2015), held that “The borrower /

mortgager or any other person has no locus to

 3 Crl.Misc.No.580/2021

participate / object / beheard at the time of the

passing of the order or any other stage including the

execution or implementation of the order”. Therefore,

issuance of notice of this petition to the respondents is

dispensed with.

4. on the basis of point for consideration is that:-

“Whether the petitioner is entitled for

the physical possession of the schedule
property as prayed”?

5. Heard the arguments, perused materials on

record, on that basis my findings on the above point is in

affirmative for the following:-

R E A S O N S
6. Point No.1 : From a plain reading of S.14, it

appears that only a Chief Metropolitan Magistrate or a

District Magistrate, can entertain a petition filed under the

said section but, in Civil Appeal No.6295/2015, in the case

of “The Authorized Officer, Indian Bank –Vs- D.Visalakshi

and another”, it was held by the Hon’ble Apex Court, that

Chief Judicial Magistrate is equally competent to deal with

an application moved by the secured creditor under section

 4 Crl.Misc.No.580/2021

14 of the SARFAESI Act 2002. Therefore, the present

petition is very much maintainable before this court.

7. As could be seen from the documents placed

before the court, the schedule properties/secured assets

are situated Seegehalli Village, Whitefield, Hoskote Road,

Bangalore, i.e. a place situated within the local limits of the

jurisdiction of this court. Therefore, this court can

entertain the present petition without any hesitation.

8. As per the petition averments and also the

averments made in the affidavit accompanying the petition,

the petitioner has sanctioned a loan of Rs.94,29,481/- to

the respondents against the security of the schedule

property. As per the terms of the loan papers, the

respondents have to repay the said loan amount with agreed

rate of interest together with other applicable charges in

regular installments. After availing the said loan the

respondents have failed to keep up their promise of prompt

repayment, inspite of repeated requests and demands made

by the officials of the petitioner and at present, there is an

outstanding balance of Rs.1,17,43,978/- as on 04.09.2021

in the loan accounts in question; and hence, the said loan

 5 Crl.Misc.No.580/2021

accounts have classified as non-performing assets(NPA).

Therefore, the petitioner being a secured creditor is, in law,

entitled to obtain the physical possession of the schedule

property/secured asset, in respect of which the

respondents, while borrowing the loan in question, have

created a security interest in its favour.

9. The contents of the documents produced by the

petitioner corroborate the contention of the petitioner as

well as the contents of the sworn affidavit of its

authorized officer that it is the secured creditor, as the

respondents have created a security interest in respect of

the schedule property/ secured asset, while borrowing the

loan in question which has now classified as non-performing

asset due to the default committed by the respondents in

making regular repayment as agreed and its claim against

the respondents is well within the period of limitation. The

records also reveal that the petitioner has issued a demand

notice dated 28.08.2019 as contemplated U/s.13(2) of the

SARFAESI Act and despite receipt of the said notice,

the respondents have failed either to comply with the just

 6 Crl.Misc.No.580/2021

and legal demands made therein, within 60 days or to issue

suitable reply by raising any tenable objections.

10. The copy of CERSAI certificate produced by the

petitioner reveal that the security interest created in its

favour by the respondents have been registered with the

Central Registry of Securitization Asset Reconstruction and

Security Interest of India, New Delhi. So, the petitioner

has complied the mandatory requirement of the provision of

S.26D of the SARFAESI Act, as amended by Act 44 of

2016 and thereby entitled to exercise the rights of

enforcement of securities under Chapter – III of the said

Act, which contains S.14 too.

11. As stated in the addl.affidavit dated 20.11.2021

sworn by the authorized officer of the petitioner, no

tenant or third parties are occupying in the schedule

property and respondents are in physical possession of the

same. No grounds or materials before the court to

disbelieve the said contention.

12. I have perused the affidavit sworn by the

authorized officer of the petitioner and satisfied that the

contents of the said affidavit is inconsonance with the

 7 Crl.Misc.No.580/2021

requirements of the first proviso appended to S.14(1) of

the SARFAESI Act. Further, as I have already observed

the declaration made in the said affidavit is inconformity

with the documents produced before the court. By

considering all these aspects, I am satisfied about the fact

that there is a need to extend the assistance of this court

to obtain physical possession of the secured asset by the

petitioner company as prayed.

13. It is the settled principles of law that, for the

sake of convenience, to do the ministerial work, courts are

empowered to appoint advocate commissioner. Therefore, I

am of the considered opinion that it is required to take

possession of the secured asset by appointing an advocate

as court commissioner.

14. For all the above reasons, I hold that the

petitioner company, being the secured creditor, is entitled

to take physical possession of the secured asset as

contemplated under section 14 of the SARFAESI Act,

2016. Hence, I answer the present point in the affirmative.

In the result following:-

 8 Crl.Misc.No.580/2021

O R D E R

The present petition filed under

section 14 of the SARFAESI Act is

hereby allowed.
[[

The petitioner is entitled to take

physical possession of the secured asset

which is described as petition schedule

property.

Sri.V.M.Sadakrishna, is appointed

as court commissioner to take physical

possession of the secured asset and to

deliver the same to the petitioner.

The commissioner’s fee is

tentatively fixed at Rs.5,000/- and the

petitioner bank is directed to pay the

same to the court commissioner.

It is also ordered that the

jurisdictional police shall assist the court

commissioner and the petitioner bank to

take physical possession of the secured

asset by drawing mahajar and also by

 9 Crl.Misc.No.580/2021

taking photographs or by making

videography at the cost of petitioner

bank.

On depositing or payment of

commissioners' fees, the office is

directed to issue commission warrant in

the name of court commissioner, who is

hereby directed to submit the compliance

report in the court office without undue

delay.

Return the original documents to the

petitioner or their counsel on proper

identification.

(Dictated to the stenographer directly on computer,

corrected and signed by me and then pronounced in the open
court on this 27th day of November 2021.)

(V.PRAKASH)
Chief Judicial Magistrate.
Bangalore Rural District, Bengaluru.
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