Kerala High Court
WP(C)/7416/2025 of PADMAKUMAR K.R. Vs AXIS BANK LTD. on 3 April 2025
COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE GOPINATH P. THURSDAY, THE 3RD DAY OF APRIL 2025 / 13TH CHAITHRA, 1947 WP(C) NO. 7416 OF 2025 PETITIONER/S: PADMAKUMAR K.R. AGED 53 YEARS S/O LATE MR RAJAGOPALAN, KAVITHARAJ, MAMPALLIKUNNAM, CHATHANOOR, KOLLAM, KERALA, PIN - 691572
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE GOPINATH P.
THURSDAY, THE 3RD DAY OF APRIL 2025 / 13TH CHAITHRA, 1947
WP(C) NO. 7416 OF 2025
PETITIONER/S:
PADMAKUMAR K.R.
AGED 53 YEARS
S/O LATE MR RAJAGOPALAN, KAVITHARAJ,
MAMPALLIKUNNAM, CHATHANOOR, KOLLAM, KERALA, PIN - 691572
BY ADVS.
C.RAJENDRAN
R.S.SREEVIDYA
RESPONDENT/S:
AXIS BANK LTD.
HAVING ITS REGISTERED OFFICE AT TRISHUL, OPPOSITE
SAMARTH TEMPLE, NEAR LAW GARDEN, ELLISBRIDGE, AHMEDABAD, GUJARAT, REPRESENTED BY THE MANAGING
DIRECTOR AND CEO, PIN - 380006
THE BRANCH MANAGER
AXIS BANK LTD., HAVING ITS BRANCH OFFICE AT SHRI
VIGNESHWARAM BHAVAN, FIRE STATION, KADAPPAKADA, KOLLAM, KERALA, PIN - 691008
ADV SMT. PRATHIBHA P.R
ADVOCATE COMMISSIONER, PURUSHOTHAM BUILDING,
THEVALLY PO, KOLLAM, PIN - 691009
BY ADVS.
Madhu Radhakrishnan
DEEPAK ASHOK KUMAR(K/1624/2018)
M.D.JOSEPH(K/839/2008)
NELSON JOSEPH(K/380/2007)
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 03.04.2025, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
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JUDGMENT
The petitioner has approached this Court challenging Ext.P7 order issued by the Chief Judicial Magistrate Court, Kollam on an application filed by the respondent bank under Section 14 of the SARFAESI Act.
2. The learned counsel appearing for the respondent bank submits that the petitioner cannot challenge Ext.P7 order in a writ petition under Article 226 of the Constitution of India. It is submitted that if the petitioner is in any manner aggrieved by the steps taken by the respondent bank to take physical possession of the secured asset, it is for the petitioner to challenge the proceedings before the Debts Recovery Tribunal. It is submitted that possession of the secured asset has already been taken pursuant to Ext.P7 order.
3. The learned counsel appearing for the petitioner vehemently submits that there are various illegalities in the steps taken by the Advocate Commissioner for taking physical possession of the secured assets and therefore, the petitioner is entitled to maintain a writ petition before this Court.
4. Having heard the learned counsel appearing for the petitioner and the learned counsel appearing for the respondent bank, I am of the view that the learned counsel appearing for the respondent bank is right in contending that the remedy of the petitioner lies in initiating proceedings before the Debts Recovery Tribunal under Section 17 of the SARFAESI Act. It is settled law that the Magistrate acting under Section 14 of the SARFAESI Act is not adjudicating the rights of parties and is only extending assistance to the secured creditor in taking physical possession of the secured asset. In other words, the order of the Magistrate does not result in adjudication of the rights of the parties. Therefore, the petitioner cannot challenge Ext.P7 order before this Court. If the petitioner has any case that the Advocate Commissioner appointed by the Chief Judicial Magistrate has not complied with the order in letter and spirit or if the petitioner has a case that the steps taken by the respondent bank for taking physical possession of the secured asset is vitiated in any other manner, it is for the petitioner to seek remedies before the Debts Recovery Tribunal. Accordingly, this writ petition is closed, leaving open all contentions taken by the petitioner and reserving the right of the petitioner to seek remedies before the Debts Recovery Tribunal under Section 17 of the SARFAESI Act. Considering the fact that this writ petition has been pending before this Court on 21.02.2025, it is directed that for the purpose of determining any period within which the petitioner had to challenge the proceedings before the Tribunal under Section 17 of the SARFAESI Act, the period from 21.02.2025 till today shall be excluded.
Sd/-
GOPINATH P. JUDGE Scl/
APPENDIX OF WP(C) 7416/2025 PETITIONER EXHIBITS Exhibit P1 A TRUE PHOTOCOPY OF THE FIR IN CRIME NO. 1596/2023 OF POOYAPALLY POLICE STATION DATED 27/11/2023 Exhibit P2 A TRUE PHOTOCOPY OF THE LETTER SENT BY THE PETITIONER DATED 29/03/2024 Exhibit P3 A TRUE PHOTOCOPY OF THE LETTER ISSUED BY THE RESPONDENT BANK DATED 12/04/2024' Exhibit P4 A TRUE PHOTOCOPY OF THE INTERIM ORDER IN WRIT PETITION (CIVIL) NO. 19267 OF 2024 DATED 29/05/2024 Exhibit P5 A TRUE PHOTOCOPY OF THE JUDGMENT OF THIS HON’BLE COURT IN WRIT PETITION (CIVIL) NO. 19267 OF 2024 DATED 12/08/2024 Exhibit P6 A TRUE PHOTOCOPY OF THE ACKNOWLEDGMENT LETTER ISSUED BY THE 3RD RESPONDENT DATED 16/01/2025 Exhibit P7 A TRUE PHOTOCOPY OF THE ORDER OF THE CHIEF JUDICIAL MAGISTRATE COURT IN MC NO.1136/2024 DATED 02/12/2024 Exhibit P8 A TRUE PHOTOCOPY OF SECTION 14 SARFAESI ACT