The High Court
Case Details
- 1 - NC: 2025:KHC:23351 CRL.RP No. 887 of 2025 HC-KAR IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 1ST DAY OF JULY, 2025 BEFORE THE HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR CRIMINAL REVISION PETITION No. 887 OF 2025 BETWEEN:
Legal Reasoning
SMT. RENUKA S V AGED ABOUT 55 YEARS W/O LATE SRI VENKATESH R/A SY No.1231 KATHA No.1626/1-1634/1-5381/1 MAHANAGAR PALIKE KATHA No.164/1/1-5381/1 2ND STAGE, VINOBHA NAGARA, WARE No.34 SHIVAMGOGA. …PETITIONER Digitally signed by LAKSHMINARAYANA MURTHY RAJASHRI Location: HIGH COURT OF KARNATAKA (BY SRI HARI PRASAD K N, ADVOCATE) AND: M/s. CAN FIN HOMES LTD., (UNDER THE PROVISIONS OF NATIONAL HOUSING BANK ACT 1987) No.29/1 SIR M N KRISHNA RAO ROAD BASAVANAGUDI BENGALURU – 560 004. …RESPONDENT (BY SRI NARAYANA SWAMY D, ADVOCATE) THIS CRL.RP IS FILED UNDER SECTION 397 READ WITH SECTION 401 Cr.P.C PRAYING TO SET ASIDE THE ORDER PASSED IN PRL.SR.CIVIL JUDGE AND CJM SHIVAMOGGA - 2 - NC: 2025:KHC:23351 CRL.RP No. 887 of 2025 HC-KAR DATED 02.04.2025 PASSED IN CRL.MISC No.71/2025 AND DIRECTING THE PETITIONER TO DELIVER THE POSSESSION OF HOUSE PROPERTY AND ETC., THIS PETITION COMING ON FOR ORDERS THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR ORAL ORDER This revision petition is filed challenging the order dated 02.04.2025 passed in Crl.Misc.No.71/2025 by the Prl.Senior Civil Judge and CJM, Shivamogga where under the petitioner has been directed deliver the possession of house property. 2. The operative portion of impugned order reads thus: “The petition filed under Section SARFAESI Act, 2002 is allowed. Respondents are hereby directed to surrender physical possession of the petition schedule property in favour of petitioner bank. The jurisdictional police are hereby directed to assist in evicting the occupants of the - 3 - NC: 2025:KHC:23351 CRL.RP No. 887 of 2025 HC-KAR schedule property if required by breaking open the lock and to deliver possession of the property. Sri T.Vijay Advocate, Shivamogga is hereby appointed as Court Commissioner to execute the order. Court Commissioner fee is fixed at Rs.5,500/-. Office shall return the original documents to the petitioner bank.” 3. The impugned order has been passed on an application filed by the respondent under Section 14 of the SARFAESI Act. The petitioner is a borrower and respondent is the creditor. The petitioner has borrowed loan by executing mortgage deed of immovable property in favour of respondent. The petitioner became defaulter. Respondent after issuance of notice has filed petition under Section 14 of the SARFAESI Act. Section 14 of the SARFAESI Act reads as under: - 4 - NC: 2025:KHC:23351 CRL.RP No. 887 of 2025 HC-KAR 14. Chief Metropolitan Magistrate or District Magistrate to assist secured creditor in taking possession of secured asset. the secured creditor under (1)Where the possession of any secured asset is required to be taken by the secured creditor or if any of the secured asset is required to be sold or the transferred by provisions of this Act, the secured creditor may, for the purpose of taking possession or control of any such the Chief secured asset, 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- in writing, request, (a)take possession of such asset and documents relating thereto; and (b)forward such asset and documents to the secured creditor. [Provided that any application by the secured creditor shall be accompanied by an affidavit duly affirmed by the authorised officer of the secured creditor, declaring that- (i)the aggregate amount of financial assistance granted and the total claim of the Bank as on the date of filing the application; (ii)the borrower has created security interest over various properties and that the Bank or Financial Institution is holding a valid and subsisting security interest over such properties and the claim of the Bank or Financial Institution is within the limitation period; - 5 - NC: 2025:KHC:23351 CRL.RP No. 887 of 2025 HC-KAR (iii)the borrower has created security interest over various properties giving the details of properties referred to in sub-clause (ii) above; (iv)the borrower has committed default in repayment of the financial assistance granted aggregating the specified amount; (v)consequent upon such default in repayment of the financial assistance the account of the borrower has been classified as a nonperforming asset; (vi)affirming that the period of sixty days notice as required by the provisions of sub-section (2) of section 13, demanding payment of the defaulted financial assistance has been served on the borrower; (vii)the objection or representation in reply to the notice received from the borrower has been considered by the secured creditor and reasons for non- acceptance of such objection or representation had been communicated to the borrower; (viii)the borrower has not made any repayment of the financial assistance in spite of the above notice and the Authorised Officer is, therefore, entitled to take possession of the secl1red assets under the provisions of sub-section (4) of section 13 read with section 14 of the principal Act; (ix)that the provisions of this Act and the rules made thereunder had been complied with: Provided further that on receipt of the affidavit from the Authorised Officer, the District Magistrate or the Chief Metropolitan Magistrate, as the case may be, shall after satisfying the contents of the affidavit pass suitable orders for the purpose of taking possession of the secured assets [within a period of thirty days from the date of application] - 6 - NC: 2025:KHC:23351 CRL.RP No. 887 of 2025 HC-KAR Provided further that if no order is passed by the Chief Metropolitan Magistrate or District Magistrate within the said period of thirty days for reasons beyond his control, he may, after recording reasons in writing for the same, pass the order within such further period but not exceeding in aggregate sixty days. Provided also that the requirement of filing affidavit stated in the first proviso shall not apply to proceeding pending before any District Magistrate or the Chief Metropolitan Magistrate, as the case may be, on the date of commencement of this Act.] (1A) The District Magistrate or the Chief Metropolitan Magistrate may authorise any officer subordinate to him,- (i)to take possession of such assets and documents relating thereto; and (ii)to forward such assets 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. (3)No act of the Chief Metropolitan Magistrate or the District Magistrate [any officer authorised by the Chief Metropolitan Magistrate or District Magistrate] done in pursuance of this section shall be called in question in any Court or before any authority. 4. The impugned order has been passed by the Chief Judicial Magistrate, Shivamogga under Section 14 of the SARFAESI Act. Section 14(3) of the SARFAESI Act - 7 - NC: 2025:KHC:23351 CRL.RP No. 887 of 2025 HC-KAR provides that orders of Chief Metropolitan Magistrate or District Magistrate done in pursuance of Section 14 shall not be called in question in any Court or before any authority. 5. Section 17 of the SARFAESI Act provides remedy of appeal to the petitioner challenging the impugned order. The said remedy is before the Debts Recovery Tribunal. Considering the said aspect challenging the order passed under Section 14 is not maintainable. Hence, revision petition is dismissed as not maintainable. Sd/- (SHIVASHANKAR AMARANNAVAR) JUDGE DKB List No.: 1 Sl No.: 10